DENVER v. MABUS
Filing
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MEMORANDUM ORDER DENYING 7 Defendant's Motion to Dismiss for Lack of Jurisdiction and/or Motion for Summary Judgment. The case is REMANDED to the Board for Correction of Naval Records. The Clerk of Court shall mark this CASE CLOSED. Signed by Judge Arthur J. Schwab on 10/19/2015. (lcb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MATTHEW DENVER,
Plaintiff,
15cv0890
ELECTRONICALLY FILED
v.
RAY MABUS in his official capacity as
SECRETARY OF THE NAVY,
Defendant.
MEMORANDUM OPINION RE: DEFENDANT’S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT (DOC. NO. 7)
I.
Introduction
Plaintiff, Matthew Denver, commenced this legal action under the Administrative
Procedures Act (“APA,” 5 U.S.C. §§701-706) against the Secretary of the Navy seeking redress
from the decision of the Board for Correction of Naval Records (“BCNR”), denying his request
for reconsideration of his discharge from the Navy in 1983 with an “Other Than Honorable”
classification. Doc. No. 1. Plaintiff seeks the following: (1) a determination from this Court that
a material error occurred in his case before the administration separation board; (2) a reversal of
the BCNR’s decision; (3) an Order upgrading his discharge from Other than Honorable; and/or
(4) a remand of this action to the BCNR. Id. at pgs. 3-4. Currently pending before this Court is
a Motion to Dismiss for Lack of Jurisdiction and/or Motion for Summary Judgment filed by
Defendant. Doc. No. 7. Plaintiff wholly opposes Defendant’s Motion, which is premised on
Federal Rule of Civil Procedure 12(b)(1) and, alternatively, Rule 56. Doc. No. 16.
II.
Standard of Review
A. Rule 12(b)(1)
A Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) challenges this Court’s “very
power to hear the case.” See Judkins v. HT Window Fashions Corp., 514 F. Supp. 2d 753, 759
(W.D. Pa. 2007), quoting Mortenson v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977)). As the party asserting jurisdiction, Plaintiff “bears the burden of showing that its claims
are properly before the district court.” Dev. Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d
156, 158 (3d Cir. 1995). In reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), this Court
must distinguish between facial attacks and factual attacks. See Petruska v. Gannon Univ., 462
F.3d 294, 302 (3d Cir. 2006).
A facial attack challenges the sufficiency of the pleadings, and the Court must accept the
Plaintiff's allegations as true. Id. A Defendant who attacks a complaint on its face “[asserts] that
considering the allegations of the complaint as true, and drawing all reasonable inferences in
favor of [plaintiff], the allegations of the complaint are insufficient to establish a federal cause of
action.” Mullen v. Thompson, 155 F. Supp. 2d 448, 451 (W.D. Pa. 2001). Dismissal is proper
under Rule 12(b)(1) only when “the claim clearly appears to be immaterial and made solely for
the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous.” Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), quoting Bell v. Hood, 327
U.S. 678, 682 (1946)).
When, as in this case, a Defendant launches a factual attack on subject matter
jurisdiction, “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” Petruska, 462 F.3d at 302, quoting Mortenson, 549 F.2d at 891. In a
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factual attack, this Court must weigh the evidence relating to jurisdiction, with discretion to
allow affidavits, documents, and even limited evidentiary hearings. See United States ex rel.
Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
B.
Review of a Decision of An Administrative Agency
In reviewing the decision of an administrative agency, such as the Bureau for Correction
of Navy Records, the Court is limited to the administrative record. 5 U.S.C. § 706; Frazier v.
Mabus, 901 F.Supp.2d 600, 613 (W.D. Pa. 2012), citing Fuller v. Winter, 538 F.Supp.2d 179,
185 (D.D.C. 2008). As such, the Court is not to determine how it would have decided the matter
and “is not to substitute its judgment for that of the agency.” Prometheus Radio Project v.
F.C.C., 373 F.3d 372, 389 (3d Cir. 2004). The appropriate standard to set aside agency decisions
is limited to those that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); Baugh v. Sec’y of the Navy, 504 F.Appx. 127, 130
(3d Cir. 2012).
C.
Case Law - BCNR
Pursuant to 10 U.S.C. § 1552(a)(1) , the Secretary of the Navy is authorized to correct
error in and remove injustice from the records of current and former members of the Navy and
Marine Corps through the BCNR. The BCNR is not an investigative body, and instead its
function is to determine the existence of error or injustice in Naval records of current and former
members of the Navy (and Marine Corps) and to make recommendation to or take corrective
action on the Secretary’s behalf.
The BCNR reviews all pertinent evidence of record, and will deny relief when the
“record fails to demonstrate the existence of probable material error or injustice.” 32 C.F.R. §
723.3(e)(1). Applicants bear the burden of overcoming the presumption of regularity to support
the official actions of public officials and, in the absence of substantial evidence to the contrary,
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it shall be presumed that these officials have properly discharged their official duties. Id. The
BCNR has authority for final action to correct a record as delegated by the Secretary, and need
only provide a rational explanation for the decision based on the administrative record. 5 U.S.C.
§ 706(2)(E). Once the BCNR fairly considers all the evidence in the record, it is “free to draw
[its] own reasonable inferences and conclusions from the evidence before [it].” Mudd v.
Caldera, 134 F.Supp.2d 138, 143 (D.D.C. 2001).
III.
Background Facts
Plaintiff served in the United States Navy from 1979 to 1983. Doc. No. 1, ¶ 5. Plaintiff
was discharged for alleged marijuana possession and use while in the service. Id. at ¶ 6. The
decision to discharge Plaintiff was made by the administrative discharge board following a
hearing. Id. at ¶¶ 6-7. During this hearing, Plaintiff alleges he was compelled to incriminate
himself in violation of the Fifth Amendment and applicable Navy regulations. Id. at ¶¶ 9-10.
Plaintiff was assigned an “other than honorable” discharge classification. Id. at ¶ 11.
In 2012, Plaintiff requested that his discharge status be changed by the Board of
Corrections of Naval Records, which was denied in May of 2013. Id. at ¶ 12. Plaintiff requested
a reconsideration of this denial, which was also denied. Id. at ¶¶ 13-14.
IV.
Discussion
As noted by both Parties, the Court’s focus is not on the decision to discharge Plaintiff or
the corresponding classification, but, rather, on the process associated with this decision. Baugh,
504 Fed. Appx. at 130. Plaintiff contends that Defendant’s Motion must be denied and the case
remanded for further consideration because the underlying record was incomplete and thus, the
decision was arbitrary and capricious. Doc. No. 16, pg. 13. Specifically, Plaintiff contends that
the following information was not included in the record: (1) Plaintiff’s written statement; (2) a
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record of the hearing; (3) a witness statement corroborating alleged bias by one of the separation
board members; and (4) some of Plaintiff’s favorable work evaluations. Both Parties agree that
the BCNR is required to review all “relevant factors.” Motor Vehicles Mfrs. Assn. of U.S. v.
State Farm Mutual Auto Ins. Co., 463 U.S. 29, 42-3 (1983). Defendant argues that the
documents noted above are not relevant to Plaintiff’s claims and the resultant decision would
have been the same even if the documents were considered.
The Court confines its review in this case to the procedure of the underlying decision, not
the merits. The documents identified by Plaintiff as incomplete from the record are relevant to
his claims and support allegations of bias and other factors, which could have affected the his
discharge classification. Without evidence that these documents were considered by the BCNR,
the Court cannot find that the decision comports with the deferential standard of review. Motor
Vehicles, 463 U.S. at 43 (“The reviewing court should not attempt itself to make up for []
deficiencies.”) In so finding, the Court does not substitute its judgment for that of the BCNR and
does not deem to make any determination as to an appropriate agency disposition. However, the
Court finds that all of the relevant information was not before the BCNR and thus, remand is the
only appropriate remedy.
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V.
Order
AND NOW, this 19th day of October, 2015, IT IS HEREBY ORDERED as follows:
1. Defendant’s Motion to Dismiss, or, in the Alternative, Motion for Summary Judgement
(Doc. No. 7) is DENIED;
2. The case is REMANDED to the Board for Correction of Naval Records for further
consideration based upon Plaintiff’s complete Official Military Personnel File; and
3. The Clerk of Court shall mark this CASE CLOSED.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:
All Registered ECF Counsel and Parties
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