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BLISS v. JOHNSON

August 29, 2003

MARY G. BLISS,[FN1] PLAINTIFF, HANSFORD T. JOHNSON,[FN2] ACTING SECRETARY OF THE NAVY, DEFENDANT


The opinion of the court was delivered by: Ricardo Urbina, District Judge

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff brings suit against the Secretary of the Navy ("the defendant") under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and 10 U.S.C. § 1372(3), challenging a decision by the Board for Correction of Naval Records ("BCNR") denying the plaintiff the rank of major at retirement. The plaintiff asks the court to reverse the BCNR's decision, declare that the plaintiff attained the rank of major, and award damages for back pay accordingly. In response, the defendant contends that the BCNR's denial of the plaintiff's request for the rank of major did not violate the APA, and that this court lacks authority to grant the [ Page 2]

plaintiff the relief he seeks. Because the plaintiff has not shown by clearly convincing evidence that the defendant has failed to provide a satisfactory explanation for the BCNR's denial of the plaintiff's petition, the court grants the defendant's motion for summary judgment and denies the plaintiff's motion for summary judgment.

II. BACKGROUND

A. Factual Background*fn3

The plaintiff enlisted in the United States Marine Corps ("USMC") in 1979 and entered active duty as a commissioned officer in 1980. Def.'s Statement of Undisputed Material Facts ("Def.'s Statement") ¶ 1; Admin. R. vol. A ("ARA") at 26, 28, 46-49. In November 1992, after twice failing to be selected for promotion and pursuant to statutory requirements, the plaintiff was discharged from active duty.*fn4 Def.'s Statement ¶ 2 (citing 10 U.S.C. § 632); Pl.'s Additional Statement of Undisputed Material Facts ("Pl.'s Statement") ¶ 1; ARA at 24.

Upon his discharge, the plaintiff accepted a commission as a captain in the USMC Reserve. Def.'s Statement ¶ 3; Pl.'s Statement ¶ 2; ARA at 24; Admin. R. vol. B ("ARB") at 25, 138-39. In December 1993, a reserve promotion selection board selected the plaintiff for promotion to the rank of major. Def.'s Statement ¶ 4; Pl.'s Statement ¶ 4. [ Page 3]

In June 1994, seven months after his promotion to major in the USMC Reserve, the plaintiff suffered a seizure and underwent surgery for a brain tumor. Def.'s Statement ¶¶ 5-6; ARA at 58; ARB at 72, 112-19. In October 1994, the plaintiff received notice that he was not eligible for USMC Reserve disability benefits, but that he might be eligible for USMC active-duty disability benefits if the BCNR were to conclude that he had a physical disability at the time of his discharge from active duty. Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") at 2. The plaintiff petitioned the BCNR accordingly. Def.'s Statement ¶ 7; ARB at 141. In February 1995, the BCNR concluded that the plaintiff had been suffering from the tumor prior to his November 1992 discharge, and that if the tumor had been discovered, the plaintiff would have been transferred to the Temporary Disability Retired List ("TDRL") rather than discharged. Def.'s Statement ¶ 8; ARB at 43-45. Finding "the existence of an injustice warranting . . . corrective action," the BCNR corrected the plaintiff's record to show that he was placed on the TDRL in November 1992 rather than discharged from active duty. Id.

In June 1996, the plaintiff learned that because he was a USMC captain in November 1992 — the date on which his record reflected his placement on the TDRL — his subsequent promotion to major in the USMC Reserve did not entitle him to promotion or advancement on the TDRL. Pl.'s Mot. at 3. In September 1996, the plaintiff petitioned the BCNR to correct his record to show that he retired at his "last/highest held rank" of major. Def.'s Statement ¶ 9; ARB at 11. The BCNR denied his petition, however, advising the plaintiff that it substantially concurred with an advisory opinion stating that

[a]lthough [the plaintiff] served as a major in the reserve component subsequent to 1992, he was a captain on 2 November 1992, the date that BCNR corrected his record to reflect transfer to the TDRL. His subsequent promotion to major, USMC, does not entitle him to promotion or advancement on the TDRL.
Def.'s Statement ¶ 10; ARB at 6, 9. In June 1999, the plaintiff petitioned the BCNR to [ Page 4]

reconsider his petition, but BCNR indicated that reconsideration was not appropriate because "the decision would inevitably be the same." Def.'s Statement ¶¶ 11-12; ARB at 1, 5. In the fall of 2002, the plaintiff passed away and was buried with full military honors at Arlington National Cemetery. Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") at 3.

B. Procedural History

On September 12, 2001, the plaintiff filed his complaint. On January 14, 2002, the defendant filed a motion to dismiss for lack of subject-matter jurisdiction. On February 15, 2002, the plaintiff amended his complaint, and the defendant subsequently renewed its motion to dismiss. The parties filed motions for summary judgment on April 12 and May 6, 2002. On June 20, 2002, the court issued a memorandum opinion indicating that unless the plaintiff amended his complaint to waive recovery of back pay in excess of $10,000, the court would grant the defendant's motion to dismiss because the plaintiff's complaint sought more than $10,000 in monetary relief, bringing the action within the exclusive jurisdiction of the Court of Federal Claims. Bliss v. England, 208 F. Supp.2d 2 (D.D.C. 2002).

On July 11, 2002, in response to the court's opinion, the plaintiff filed a second amended complaint that waived recovery of back pay in excess of $10,000. On September 13, 2002, the defendant filed a motion for summary judgment. On September 24, 2002, the plaintiff filed a cross-motion for summary judgment accompanied by a request ...


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