Brezler v. Mills et al

Filing 19

MEMORANDUM AND OPINION: For the reasons set forth herein, plaintiff's motion for a preliminary injunction is denied without prejudice. Ordered by Judge Joseph F. Bianco on 2/18/2015. (Moe, Alison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-7424 (JFB)
_____________________

JASON BREZLER,
Plaintiff,
VERSUS

LIEUTENANT GENERAL RICHARD MILLS, UNITED STATES MARINE CORPS, AND
UNITED STATES DEPARTMENT OF THE NAVY,
Defendants.
___________________
MEMORANDUM AND ORDER
February 18, 2015
___________________

JOSEPH F. BIANCO, District Judge:
This lawsuit arises from a military
disciplinary proceeding that recommended
Major Jason Brezler’s dismissal from the
United States Marine Corps. Major Brezler
(“plaintiff”) brings this action against
Lieutenant General Richard Mills, the
United States Marine Corps, and the United
States Department of the Navy (collectively,
“the government” or “defendants”),
challenging the disciplinary proceeding
under the Administrative Procedure Act
(“APA”), the Due Process clause, and the
military
regulations
for
conducting
disciplinary proceedings.
Major Brezler has served in the Marine
Corps for fourteen years, and has deployed
overseas four times. He is currently a major
in the United States Marine Corps Reserve,
assigned since 2010 to duties at the Marine
Reserve facility in Garden City, Long

Island, where he is presently enrolled in the
Marine Corps Command and Staff College.
According to the complaint, this lawsuit
traces back to the summer of 2012, when
plaintiff warned Marines deployed in
Afghanistan about a dangerous individual.
On August 10, 2012—two weeks after that
warning—three Marines were murdered in
the Forward Operating Base Delhi
gymnasium in Afghanistan. Plaintiff asserts
that senior Marine Corps officials have
engaged in a “concerted two-year long effort
. . . to cover-up the severe lapses and other
highly damaging misconduct that led to
those murders” and that the current
disciplinary proceedings are in furtherance
of that “cover-up.” (Pl. Mem. at 1-2.)
Plaintiff further alleges that his disciplinary
hearing was procedurally and substantively
defective because, among other things, the
Marine Corps failed to provide a timely,

namely, (1) the record and recommendation
are currently under review by the Staff
Judge Advocate to the Commandant of the
Marine Corps; (2) following that review, the
recommendation will be reviewed by the
Deputy Commandant, Manpower and
Reserve Affairs; and (3) after that review,
the record will be sent to the Secretary of the
Navy for a final determination. Although
plaintiff argues that the finality requirement
is met because the Board of Inquiry has
made factual findings, the Court is not
persuaded by that argument. Importantly,
the regulatory procedures currently available
to plaintiff still allow for remand of the case
for further factfinding, including a new
hearing, if warranted. Therefore, there is
nothing final about the Board of Inquiry
findings. In any event, the final, reviewable,
agency action in this case will be the
separation determination by the Assistant
Secretary (if such a determination is ever
made), and not the preliminary factual
findings.

verbatim transcript that would allow for
prompt review of the hearing record.
Defendants counter that, on July 25,
2012, plaintiff transmitted classified data via
an unsecure, commercial e-mail account,
which led the Naval Criminal Investigative
Service to investigate plaintiff’s handling of
classified documents. According to the
government, that investigation “revealed
that Major Brezler had stored more than 100
official documents, including classified
documents, on his personal laptop and/or
external storage device.” (Def. Mem. at 1.)
Following that investigation, Major Brezler
was referred to a Board of Inquiry for
additional factfinding regarding his potential
violation of regulations governing the
handling of classified information. The
Board of Inquiry conducted a hearing and
recommended an honorable separation, but
additional levels of administrative review of
that recommendation are pending.
The present motion seeks a preliminary
injunction prohibiting the Marine Corps
from either acting upon the separation
recommendation or proceeding any further
in the disciplinary process. In the alternative,
plaintiff seeks an injunction compelling the
Navy to provide an accurate transcript of the
initial disciplinary hearing.

The Court recognizes that Major Brezler
has raised serious allegations about the
circumstances surrounding the murders of
three United States Marines in Afghanistan,
and that Major Brezler’s career in the
Marine Corps is being jeopardized by a
disciplinary proceeding that he asserts was
flawed. However, the Court’s jurisdiction is
limited by the finality requirement of the
APA, and the Court cannot immediately
review the merits of plaintiff’s challenges to
the disciplinary proceedings simply because
important interests are at stake and due
process challenges are being raised. Instead,
the Court must properly adhere to the
jurisdictional boundaries imposed by
Congress and await a final action from the
military that is reviewable under the APA.
Accordingly, given the current absence of a
final agency action, this Court lacks
jurisdiction at this juncture to review

For the reasons discussed below, the
Court denies plaintiff’s motion.
In
particular, it is well settled that an agency
action must be final before judicial review
of that decision is available under the APA.
In the instant case, the record clearly
demonstrates that the decision to separate
plaintiff from the Marine Corps is not final;
rather, it is a Board of Inquiry
recommendation. As a result, plaintiff has
additional layers of process available to him
within the Department of Defense before
any prospective order becomes final –
2

Applicable here are three sections of the
United States Code, Title Ten, governing the
involuntary separation of officers from the
armed forces: 10 U.S.C. § 1181, § 1182 and
§ 14903. Together, Sections 1182 and 14903
provide that the “military department
concerned” (here, the Marine Corps) must
convene a “board of inquiry” to receive
evidence in the case of any officer who has
been required to show cause why he should
not be separated. Section 14903 requires the
board of inquiry to make a recommendation
to the Secretary of the Navy, who reviews
the recommendation and decides whether to
remove the officer or close the case.

plaintiff’s claim under the APA, and no
basis for an injunction exists at this time.
Finally, the Court notes that plaintiff’s
counsel suggested at oral argument that
Major Brezler is also asserting a First
Amendment retaliation claim – namely, that
Major Brezler was only referred to the
Board of Inquiry because senior Marine
Corps officials were unhappy with news
coverage suggesting that Major Brezler had
spoken to Congressman Peter King about
the three murdered Marines in Afghanistan.
However, no First Amendment claim
appears in the complaint. Thus, Major
Brezler must amend the complaint if he
wishes to assert a separate cause of action
for First Amendment retaliation that is
independent of the APA. If such a claim
were asserted, it would not be subject to the
finality requirement of the APA.
Nevertheless, this Court would still have to
analyze whether the exhaustion doctrine
should apply to that claim, as a matter of
judicial discretion, if the Marine Corps is
currently reviewing the facts surrounding
that claim. Under certain circumstances,
courts (including the Second Circuit) have
allowed First Amendment claims to proceed
against the military without requiring
exhaustion. See, e.g., Able v. United States,
88 F.3d 1280 (2d Cir. 1996). Regardless,
the Court’s evaluation of those issues must
await a formal amendment to the complaint
to add a First Amendment retaliation claim.

However, Section 1181 confers on the
Navy the authority to establish its own
specific procedures for implementing the
board of inquiry process. The primary Navy
regulations
that
govern
separation
proceedings are Secretary of the Navy
Instruction
1920.6C,
entitled
“Administrative Separation of Officers,” and
Marine Corps Order P5800.16A, entitled
“Marine Corps Manual for Legal
Administration.”
Under
these
Navy
regulations,
separation proceedings for Marines occur in
the following manner.1 First, the Show
Cause Authority notifies the officer that he
must appear before a Board of Inquiry. The
Board of Inquiry conducts a live hearing and
receives testimony from witnesses. Based
upon the record developed at the hearing,
the
Board
of
Inquiry
makes
a
recommendation as to whether the officer
should be retained or separated. The Show
Cause Authority reviews the record, and

I. BACKGROUND
A. Regulatory Framework
Because this lawsuit challenges the
manner in which the Marine Corps is
conducting Major Brezler’s disciplinary
proceeding, a discussion of the relevant
administrative framework is necessary.

1

These procedures are well summarized in the
Government’s memorandum, as well as in the
Declaration of Lieutenant Matthew Dursa, an
attorney in the Judge Advocate Generals Corps. (See
Def. Mem. at 2; Michael Dursa Affidavit, ECF No.
12-1.)

3

that email, and attached a classified
document. (Id.) The email was sent over
unsecured channels from plaintiff’s private
email address. (Id.) Following the
transmission,
the
Naval
Criminal
Investigative Service investigated plaintiff’s
handling of classified information. (Id. at ¶
20.) Plaintiff avers that the NCIS did not
recommend any disciplinary action. (Id. at ¶
20.) The Navy convened a Board of Inquiry
(“BOI”) for further fact-finding as to
whether plaintiff had violated military
regulations governing classified material.
(Id. at ¶ 30-34.) After a hearing, the BOI
recommended “that the respondent be
separated from the Naval Service with an
Honorable characterization of discharge.”
(Board of Inquiry Report, ECF No. 6-1.)
That recommendation is subject to further
administrative review, which has not yet
occurred.3 As a result, the recommendation
is still pending, and has not been adopted.
Plaintiff claims that review of the BOI
proceeding is meaningless, because the
transcript of the hearing contains 1,548
missing portions marked “inaudible.”
(Brezler Decl. at ¶ 55.)

decides
whether
to
endorse
the
recommendation. If the recommendation is
endorsed, it is reviewed by the Staff Judge
Advocate to the Commandant of the Marine
Corps. The Staff Judge Advocate makes a
recommendation to the Secretary of the
Navy, who reviews the record and makes a
final determination. The Secretary may
either order the officer’s separation or close
the case.
B. Factual History
The following facts are taken from the
complaint and from plaintiff’s submissions
in support of the present motion. The
government has not submitted materials to
contradict all of plaintiff’s factual
allegations, but instead has taken the
position that “Major Brezler’s Motion is
filled with unsupported allegations and
arguments that are entirely irrelevant to the
claims at issue and the relief sought.
Stripped of the Motion’s conclusory
conspiracy theories and innuendo, however,
the relevant facts in this action are largely
not in dispute.” (Def. Mem. at 1.) The Court
has reviewed the parties’ submissions, and
the following is a summary of the facts
submitted by the plaintiff that are not
disputed by the government.2

On December 22, 2014, plaintiff
commenced this action and sought a
temporary restraining order prohibiting
defendants from acting upon the BOI’s
recommendation. (See Proposed Order,
Docket Entry 9.) On that same day, the
Court held a hearing and denied plaintiff’s
request for a temporary restraining order,
but ordered defendants to respond to the
request for a preliminary injunction.

Plaintiff is a reservist in the United
States Marine Corps, assigned to the Marine
Reserve facility in Garden City, Long
Island. (Declaration of Jason Brezler, ECF
No. 6-6 (“Brezler Decl.”), at ¶ 2.) In July
2012, while plaintiff was in Oklahoma,
plaintiff received an email from a fellow
Marine deployed in Afghanistan. (Brezler
Decl. at ¶¶ 11-14.) Plaintiff responded to

The crux of plaintiff’s claim is that he
believes the disciplinary proceedings were

2

3
The Show Cause Authority has endorsed the BOI
recommendation. The matter is currently pending
review before the Staff Judge Advocate to the
Commandant of the Marine Corps. (See Dursa
Affidavit, ECF No. 12-1, ¶ 12-13.)

The undisputed facts establish that the Court lacks
jurisdiction to issue the requested injunction at this
time because the finality requirement of the APA has
not been met; as a result, the Court concludes that
there is no need for an evidentiary hearing.

4

raise
this
issue
administratively.
Furthermore, the Staff Judge Advocate to
the Commandant of the Marine Corps has
the discretion to remand the case for further
fact-finding.

convened in order to “silence and discredit”
him. (Id. at ¶ 23.) Specifically, plaintiff
claims that the email transmission at issue in
the disciplinary proceedings was a warning
to other Marines regarding a dangerous
individual who had entered onto Forward
Operating Base Delhi (“FOB Delhi”), a
United States military base in the Helmand
Province of Afghanistan. (Id. at ¶¶ 13-17.)
In August 2012, three Marines were killed
on the gymnasium of the base, and plaintiff
claims that these deaths occurred because
the Marine Corps failed to heed his
warnings. (Id. at ¶¶ 13-21.) Plaintiff asserts
that the Marine Corps has failed to
investigate his superiors for their failure to
respond to warnings about the threat to the
base, and instead has targeted him for
dismissal in order to keep information from
coming to light. (Id. at ¶¶ 17-21.) Finally,
plaintiff claims that the BOI proceeding was
motivated by pressure on the Marine Corps
from both congressional inquiries into the
deaths on the base and media coverage of
the incident. (Id. at ¶¶ 19, 21, 30.)

This matter is fully submitted, and the
Court has thoroughly considered the
submissions of the parties.
II. STANDARD OF REVIEW
In order to prevail on a motion for a
preliminary injunction, a party must
establish: “(1) irreparable harm in the
absence of the injunction and (2) either (a) a
likelihood of success on the merits or (b)
sufficiently serious questions going to the
merits to make them a fair ground for
litigation and a balance of hardships tipping
decidedly in the movant’s favor.”
MyWebGrocer, LLC v. Hometown Info.,
Inc., 375 F.3d 190, 192 (2d Cir. 2004)
(quoting Merkos L’Inyonei Chinuch, Inc. v.
Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96
(2d Cir. 2002)). “To establish irreparable
harm, plaintiffs must demonstrate an injury
that is neither remote nor speculative, but
actual and imminent.” Tucker Anthony
Realty Corp. v. Schlesinger, 888 F.2d 969,
975 (2d Cir. 1989) (internal quotation marks
omitted).

In opposition to the motion, the
government has not responded to all of the
details of these claims, arguing that these
allegations are irrelevant because plaintiff’s
motion fails on procedural grounds.
Additionally, the government asserts that the
BOI has responded to plaintiff’s challenge to
the transcript, and a court reporter has
reviewed the audio of the hearing and
produced a new transcript containing
approximately 284 notations of “inaudible.”
(Def. Mem. at 7.)

III. DISCUSSION
The Court first considers the second
prong of the preliminary injunction
standard—that is, whether plaintiff is likely
to be successful on the merits, or whether
this case presents sufficiently serious
questions going to the merits to make them a
fair ground for litigation. Plaintiff has
asserted claims under the APA, the Due
Process clause, and Instruction 1920.6C of
the Board of Inquiry procedures.
(Complaint, ¶ 5.) The Court considers these

At oral argument, plaintiff contested the
government’s representation that the new
transcript is adequate. In response, the
government noted that the Navy has
disclosed the underlying audio recordings to
plaintiff, and that if plaintiff nonetheless
finds the transcript to be inadequate, he may
5

claims in turn. As discussed below, the
Court concludes that the second prong is not
met because (1) the Court lacks jurisdiction
over the APA claim at this juncture given
the absence of the requisite final agency
action; and (2) any attempt to bring a due
process claim independent of the APA
cannot proceed at this stage because it is
unexhausted and unripe. Thus, there is no
basis for an injunction at this stage of the
litigation.4

Bethlehem Shipbuilding Corp., 303 U.S. 41,
50-51 (1938); Schlesinger v. Councilman,
420 U.S. 738, 756 (1975)). Guitard
emphasized
that
“[t]he
imperatives
concerning military discipline require the
strict application of the exhaustion doctrine
in discharge cases.” Id. See also Michaelson
v. Herren, 242 F.2d 693, 696 (2d Cir. 1957)
(holding that district court “could not
properly assume to exercise [] jurisdiction
until the plaintiff had exhausted the review
processes which the statute provided for the
military establishment.”).

1. Administrative Procedure Act
Plaintiff
challenges
the
BOI’s
recommendation under the Administrative
Procedure Act, 5 U.S.C. § 551, et seq.
(“APA”). The APA provides that a
reviewing court shall “hold unlawful and set
aside agency action, findings, and
conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with the law . .
. .” See 5 U.S.C. § 706(2)(B).

Plaintiff argues that the ruling in Guitard
has since been abrogated by the Supreme
Court’s ruling in Darby v. Cisneros, 509
U.S. 137 (1993), which was decided a year
later. In Darby, the plaintiff sought to
challenge an order issued from an
Administrative Law Judge in the
Department of Housing and Urban
Development. Id. at 139-40. The Fourth
Circuit had held that plaintiff’s claims were
barred under the exhaustion rule, and the
Supreme Court reversed. Id. at 142. In so
ruling, the Supreme Court limited the
exhaustion rule, holding that, where agency
action has become final, courts can impose
an exhaustion rule only when expressly
required by statute. Id. at 151. (Where the
APA applies, “an appeal to ‘superior agency
authority’ is a prerequisite to judicial review
only when expressly required by statute or
when an agency rule requires appeal before
review and the administrative action is made
inoperative
pending
that
review.”)
(emphasis in original). In other words, once
an agency action becomes final, a plaintiff
need not seek further review within the
agency before seeking judicial review,
unless a specific statute requires otherwise.
In the present case, there is no question that
exhaustion is not required by statute.

The government contends that plaintiff
is procedurally barred from seeking review
under the APA because plaintiff has not
exhausted his administrative remedies. The
government chiefly relies upon Guitard v.
United States Sec’y of Navy, 967 F.2d 737
(2d Cir. 1992). In that case, the Second
Circuit reversed a preliminary injunction
barring the Navy from discharging a
member of the Naval Reserve, on the
grounds that the plaintiff had failed to
exhaust his administrative remedies. As the
Second Circuit explained, “[u]nder the
exhaustion rule, a party may not seek federal
judicial review of an adverse administrative
determination until the party has first sought
all possible relief within the agency itself.”
Id. at 740 (emphasis added) (citing Myers v.
4

Given the plaintiff’s present inability to satisfy the
second prong of the preliminary injunction, the Court
need not address the irreparable harm issue.

6

Darby, 509 U.S. at 144 (quoting Williamson
Cnty. Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S.
172, 193 (1985)); see also Top Choice
Distribs., Inc. v. United States Postal Serv.,
138 F.3d 463, 466 (2d Cir. 1998) (“Finality
is an explicit requirement of the APA, while
exhaustion is a judge-made creation . . . .”).

It is uncertain whether there is an
exception to the Darby rule for military
discipline cases, to avoid undue judicial
interference with the armed forces. As
plaintiff points out, many courts have
declined to recognize a military exception to
Darby. See Crane v. Sec’y of the Army, 92
F. Supp. 2d 155, 161-62 (W.D.N.Y. 2000)
(“Almost without exception, federal courts
throughout the country have also declined to
create a military exception to the Court’s
decision in Darby.”) (collecting cases).

Thus, even though Darby does not
require exhaustion under the APA, it is well
established that “the APA explicitly requires
that an agency action be final before a claim
is ripe for review.” See Air Espana v. Brien,
165 F.3d 148, 152 (2d Cir. 1999) (citing Top
Choice Distribs., Inc. v. United States Postal
Serv., 138 F.3d 463, 466 (2d Cir. 1998)).
The purpose of the finality requirement is to
accord the agency “an opportunity to apply
its expertise and correct its mistakes,” as
well as to avoid disrupting the agency’s
processes and to relieve the courts from
piecemeal (and possibly unnecessary)
review. Id. (quoting DRG Funding Corp. v.
Secretary of Hous. and Urban Dev., 76 F.3d
1212, 1214 (D.C. Cir. 1996)). The Second
Circuit has defined the finality requirement
as follows:

The Court need not resolve the tension
between Guitard and Darby at this juncture,
because the rule of Darby is only implicated
where a plaintiff seeks review of a final
agency action. Darby itself makes this clear,
because the Court’s evaluation of the
exhaustion requirement was premised on
Section 10(c) of the APA, which provides
that judicial review is available for “final
agency action.” Darby, 509 U.S. at 142
(quoting 5 U.S.C. § 704). In fact, the
Darby Court, quoting prior precedent,
clearly explained the distinction:
We have recognized that the judicial
doctrine
of
exhaustion
of
administrative
remedies
is
conceptually distinct from the
doctrine of finality: “[T]he finality
requirement is concerned with
whether the initial decisionmaker has
arrived at a definitive position on the
issue that inflicts an actual, concrete
injury; the exhaustion requirement
generally refers to administrative and
judicial procedures by which an
injured party may seek review of an
adverse decision and obtain a
remedy if the decision is found to be
unlawful
or
otherwise
inappropriate.”

[T]wo conditions must be satisfied
for agency action to be final: First,
the
action
must
mark
the
consummation of the agency’s
decisionmaking process—it must not
be of a merely tentative or
interlocutory nature. And second, the
action must be one by which rights
or obligations have been determined
or from which legal consequences
will flow.
Sharkey v. Quarantillo, 541 F.3d 75, 88 (2d
Cir. 2008) (quoting Bennett v. Spear, 520
U.S. 154, 177-78 (1997)).

7

under the APA. Accordingly, this Court
lacks jurisdiction to review the BOI report
under the APA.7

In the instant case, there can be no
question that the BOI’s recommendation is
not a final agency action. The BOI report is
only a recommendation, and it is subject to
several layers of review before it may
potentially be adopted. Specifically, the
recommendation from the BOI (which has
been endorsed by the Show Cause
Authority) must be reviewed by the Staff
Judge Advocate to the Commandant of the
Marine Corps, after which the Deputy
Commandant will review the case. After
those two rounds of review, the Secretary of
the Navy will review the final
recommendation and decide whether to
direct plaintiff’s separation.5 At each level
of review, the Navy may decline to order
plaintiff’s separation. As such, the Navy’s
decision-making process has not yet been
consummated.6
Therefore,
the
BOI
proceeding is not a “final agency action” of
the type that is subject to judicial review

2. Due Process Challenge
Perhaps mindful of the procedural
hurdles to presenting claims under the APA,
plaintiff has also styled his case as a
freestanding constitutional challenge to the
disciplinary proceedings under the Due
Process clause. Constitutional claims
brought independently of the APA are not
subject to the finality requirement. However,
because such claims also operate outside the
scope of Darby, the exhaustion rule applies
to such claims as a matter of judicial
discretion.8 See Darby, 509 U.S. at 153 (“Of
7

In a post-argument submission, plaintiff correctly
notes that, even if there is no final agency decision, a
court may “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. §
555(b); 5 U.S.C. § 706(1). As a threshold matter,
there is no unreasonable delay claim asserted in the
current complaint. In any event, there is no factual
basis for such a claim at this juncture. On December
11, 2014, an endorsement issued by the Show Cause
Authority, and the record (including the revised
transcript) is now pending review by the Staff Judge
Advocate to the Commandant of the Marine Corps.
Counsel for defendants indicated to the Court that a
recommendation is expected in March. Thus, at this
point, there is no indication that a final decision is
being unreasonably delayed. If any unreasonable
delay were to occur in the future, plaintiff could
assert an unreasonable delay claim at that time.
8
Defendants also contend that any attempt to
challenge the constitutionality of an agency action is
subject to the APA’s finality requirement because the
APA provides the requisite waiver of the federal
government’s sovereign immunity for such claims.
By letter dated February 11, 2015, plaintiff counters
that the Court’s authority is not limited to the APA.
Under certain circumstances, a district court certainly
has jurisdiction to hear claims for injunctive relief for
alleged constitutional violations by the military; that
jurisdiction is not limited by either the APA’s finality
requirement or the doctrine of sovereign immunity.
See, e.g., Pilchman v. Department of Defense, 154 F.
Supp. 2d 415, 421 (E.D.N.Y. July 25, 2001)
(“[I]nsofar as the complaints seek injunctive relief for

5

At oral argument, the government conceded that the
Navy’s decision would become “final” (for purposes
of the APA) once the Secretary of the Navy directs
separation, even though there are two avenues for
administrative appeal available after such a decision.
6
At oral argument, plaintiff’s counsel argued that the
BOI’s report is final because the BOI proceedings
have concluded, and that therefore the BOI report is
final and subject to review. If the Court were to
accept this reasoning, then all agency action at every
level of decision-making would meet the finality
requirement, thereby frustrating the very purpose of
the requirement. Additionally, to the extent plaintiff
contends that Major Brezler’s altered status in the
Marines during the pendency of the disciplinary
review process is a final agency action, the Court
disagrees that plaintiff’s temporarily altered status is
subject to judicial review. Regardless, the collateral
consequences of the pending disciplinary charges do
not constitute irreparable harm, and thus the Court
cannot enjoin the Marine Corps from altering
plaintiff’s status while the BOI recommendation is
under review. Guitard, 967 F.2d at 742 (“the injuries
that generally attend a discharge from employment—
loss of reputation, loss of income and difficulty in
finding other employment—do not constitute the
irreparable harm necessary to obtain a preliminary
injunction.

8

course, the exhaustion doctrine continues to
apply as a matter of judicial discretion in
cases not governed by the APA.”); Able v.
United States, 88 F.3d 1280, 1288 n.7 (2d
Cir. 1996) (holding that Darby’s limits to
the exhaustion rule were not applicable to a
case seeking review of a military policy on
constitutional grounds); Cunningham v. Loy,
76 F. Supp. 2d 218, 220-21 (D. Conn. 1999)
(“The limits imposed by Darby v. Cisneros
regarding administrative exhaustion under
the APA are not applicable since Darby
specifically made no alteration in the
exhaustion doctrine in cases not governed by
the APA.”). Accordingly, in such
circumstances, exhaustion is generally
required, but exhaustion may not be required
when: “(1) available remedies provide no
genuine opportunities for adequate relief; (2)
irreparable injury may occur without
immediate judicial relief; (3) administrative
appeal would be futile; and (4) in certain
instances a plaintiff has raised a substantial
constitutional question.” Able, 88 F.3d 1288
(quoting Guitard, 967 F.2d at 741).

in the disciplinary proceedings were illegal.
Applying the Able factors, the Court readily
concludes that exhaustion should be
required of any due process claim here.
Plaintiff has ample access to process within
the Navy proceedings, and therefore he has
genuine opportunities for adequate relief. If
there were procedural defects in the BOI
proceedings, then plaintiff can raise these
issues before the agency. It is possible that
the Navy may in fact agree with plaintiff,
and remand the proceedings to the BOI for
further fact finding. Finally, although
plaintiff’s Due Process claim is brought
under the Constitution, this claim is not the
type of discrete constitutional issue that
exempted the plaintiff in Able from the
exhaustion requirement. In Able, the
question before the court was whether the
“Don’t Ask, Don’t Tell” policy was
constitutional. Here, plaintiff does not
contend that the military regulation
governing the use of confidential materials
is itself unconstitutional. Instead, plaintiff
challenges the manner in which the BOI
proceedings were conducted. For this
reason, the nature of plaintiff’s claims do not
exempt plaintiff from the exhaustion rule.

Here, as in Guitard, plaintiff challenges
the disciplinary proceedings on Due Process
grounds, claiming that the procedures used

Furthermore, even apart from the
exhaustion issue, plaintiff’s due process
claims cannot proceed because they are
unripe. This is because plaintiff has not yet
been disciplined, and thus has not yet
suffered a cognizable deprivation. See
Thomas v. City of New York, 143 F.3d 31,
34-35 (2d Cir. 1998) (affirming dismissal of
procedural due process claim as unripe,
where plaintiffs claimed the City’s licensing
application procedures denied due process,
but plaintiffs had not yet been denied a
license under the process they claimed was
unlawful); Coffran v. Board of Trustees, 46
F.3d 3, 3 (2d Cir. 1995) (due process claim
arising
from
medical
board’s
recommendation that a police officer be

alleged violation of plaintiff’s constitutional rights,
the court may entertain those claims and award
appropriate relief if they are found to be meritorious.
. . . Even in the military context, the courts cannot
abdicate their ultimate responsibility to decide
constitutional questions.”); see, e.g., Adkins v.
Rumsfeld, 450 F. Supp. 2d 440, 446 (D. Del. 2006)
(sovereign immunity did not bar claim by former Air
Force member that he was issued a letter of
reprimand in retaliation for his constitutionally
protected speech to flight surgeon). However, the
Court need not resolve the sovereign immunity issue
at this stage because, even assuming arguendo that a
constitutional claim could be brought independent of
the finality requirement of the APA, the Court
concludes that plaintiff’s due process claim should be
exhausted and is not ripe. As discussed infra, the
Court does not reach these issues with respect to any
First Amendment claim that plaintiff may assert in
the future.

9

involuntarily retired was not ripe for
review). The Court therefore concludes that,
even if plaintiff were to style his APA
challenge as a Due Process claim,9 this
claim is unlikely to succeed at this juncture
because it is unripe.

motion, and neither submission purports to
assert a First Amendment retaliation claim.
At most, it appears that plaintiff’s theory is
that the BOI proceedings were held in
response to congressional inquiries into the
deaths at FOB Delhi and media coverage of
the incident. (See Brezler Decl. at ¶¶ 30, 45.)
Plaintiff himself distills his case in the
following way:

3. Military Regulations
To the extent plaintiff seeks to enforce
regulations of the Department of Navy as a
separate cause of action, that claim also
cannot proceed. (Compl. at ¶ 5.) Plaintiff
cannot possibly be arguing that Navy
regulations give rise to a private right of
action enforceable in federal court. Instead,
it appears that plaintiff is arguing that the
disciplinary proceeding is invalid because
the agency failed to comply with its own
regulations. That is a claim that plaintiff
must raise under the APA, after the agency
takes final action subject to judicial review.
Plaintiff cannot assert claims under Navy
regulations in order to avoid the APA’s
procedural requirements.

The convening of this BOI arose out
[of] (a) the murder of three Marines
on a forward operating base in
Afghanistan, (b) a warning I sent in
reply to a request I received for
information from those Marines’ unit
that could have prevented those
murders, (c) the efforts of the
families of these dead Marines,
Congress, and the media to secure
answers about those murders, and (d)
a concerted effort directed from the
highest levels of the Marine Corps to
not provide such answers and avoid
any public scrutiny, and to discredit,
punish, and deter those it fears are a
threat to this attempted cover-up.

4. First Amendment
At oral argument, plaintiff’s counsel
argued that exhaustion should not be
required because his client, like the plaintiff
in Able, seeks to challenge a violation of his
First Amendment rights. However, the Court
has closely examined both the complaint and
Major Brezler’s declaration in support of the

(Id. at ¶ 3.) A First Amendment retaliation
claim would have to be based on some type
of alleged speech by the plaintiff, and the
complaint does not allege that the BOI
proceeding was motivated by plaintiff’s
speech.10 Plaintiff himself expressly denies
having any responsibility for the media
coverage he claims sparked the disciplinary
charges. (Id. at ¶¶ 45 (“First, the judge
advocate argued I should be separated
because I was responsible for the media
stories about the FOB Delhi murders. But
there was no evidence that this was true, and
it was not true.”), 67-70.) At oral argument,
plaintiff’s counsel made reference to

9

To the extent plaintiff argues that his due process
claim stems from a right to be free from an arbitrary
and capricious disciplinary proceeding, the Second
Circuit has rejected that view of the APA. See
Furlong v. Shalala, 156 F.3d 384, 394 (2d Cir. 1998)
(failure to comply with the APA does not give rise to
due process claim, because “a statute that simply
provides a standard for review of agency action
cannot furnish the substantive basis for a claim of
entitlement to a property interest. The APA is merely
a procedural vehicle for review of agency action; it
does not confer a substantive right to be free from
arbitrary agency action.”) (citation omitted).

10

Plaintiff does not contend that the Marine Corps is
retaliating against him for warning Marines at FOB
Delhi in July 2012.

10

communications between plaintiff and
Congressman Peter King. However, there
are no direct allegations in the complaint
about any such communications.11 In short,
even liberally construed, the current
complaint does not assert a claim of
retaliation under the First Amendment. If
plaintiff were to amend the complaint to
assert a claim of retaliation under the First
Amendment, the Court would, at that time,
consider the factors under Able to determine
whether exhaustion should be required.12

BOI’s recommendation is not a final agency
action, and therefore plaintiff cannot seek
review under the APA at this time.
Moreover, with respect to any attempt to
bring a due process claim outside the
confines of the APA framework, plaintiff
has adequate avenues for relief before
administrative tribunals, which may obviate
the need for federal judicial intervention.
Such claims are, therefore, unexhausted and
unripe. As a result, with respect to the due
process claim, on the record before the
Court, plaintiff has not shown a likelihood
of success on the merits, or even sufficiently
serious questions on the merits making them
a fair ground for litigation.

IV. CONCLUSION
In sum, the Court lacks jurisdiction to
enjoin the disciplinary proceedings. The

With respect to any First Amendment
retaliation claim (based upon plaintiff’s
communication with Congressman King or
with anyone else), no such separate claim is
contained in the complaint. Thus, the Court
cannot address that claim unless and until
plaintiff amends the complaint to include
this cause of action, together with specific
allegations regarding the nature of that
claim. If such a claim is asserted, the Court
will require additional briefing as to whether
this claim should proceed, in light of the
Able factors.

11

Plaintiff’s declaration contains one oblique
reference to retaliation that mentions his own speech:
“In a subsequent investigation into whether General
Mills took this action to retaliate against me for
statutorily protected communications to among others
members of congress, General Mills testified under
oath that he was unaware of any such
communications. The Inspector General found this
testimony false because the ‘evidence established that
[Mills] was aware of [Brezler]’s communication
before taking the action.’” (Brezler Decl. at ¶ 35).
There are no other averments in the declaration or the
complaint that amplify this allegation, and it is
unclear what communications plaintiff is referring to.
In fact, the declaration does not assert that retaliation
in fact occurred, but instead states that Lt. Gen. Mills
was investigated for possible retaliatory conduct.
Any such claim would have to be clearly asserted in
the complaint to be reviewed by the Court.
12
At oral argument and in a post-argument letter,
plaintiff referenced a potential claim under the
Military Whistleblower Protection Act, 10 U.S.C. §
1034. That claim also is not in the complaint. In any
event, this Court concludes, as other courts have held,
that no private right of action exists under that
statute. See Acquisto v. United States, 70 F.3d 1010,
1011 (8th Cir. 1995) (Ҥ 1034 does not provide [a
service member] with any private cause of action,
express or implied”); accord Hernandez v. United
States, 38 Fed. Cl. 532, 536 (Fed. Cl. 1997); see also
Bryant v. Military Dep’t of the State of Mississippi,
381 F. Supp. 2d 586, 590 (S.D. Miss. 2005) (holding
that § 1034 “provides only an administrative remedy
and not a private right of action.”).

Accordingly, plaintiff’s motion for a
preliminary injunction is denied without
prejudice.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 18, 2015
Central Islip, NY
***
11

Plaintiff is represented by Michael J. Bowe,
Kasowitz, Benson, Torres & Friedman LLP,
1633 Broadway, New York, NY 10019, and
Kevin Thomas Carroll, Quinn Emanuel
Urquhart & Sullivan LLP, 777 6th Street,
11th Floor, Washington, DC 20001. The
government is represented Leigh Aaron
Wasserstrom, Assistant United States
Attorney, on behalf of Preet Bharara, United
States Attorney, Southern District of New
York, 86 Chambers Street, New York, NY
10007.

12