The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Fernando Garcia, proceeding pro se and in forma pauperis, filed a Complaint for declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. He seeks an order directing the Secretary of the Navy to reinstate him as a member of the United States Marine Corps and to change his discharge status from dishonorable to honorable. The Secretary has filed a motion to dismiss, and Mr. Garcia has filed a motion for summary judgment, both of which are ripe. The Complaint will be dismissed for lack of jurisdiction.
Mr. Garcia is a former Marine now serving a 20-year criminal sentence imposed in 2004 pursuant to a plea agreement in a general court-martial. In 1997, when Mr. Garcia and his wife were under suspicion of criminal activity, Mr. Garcia, who was physically present in their home at the time, expressly refused to allow law enforcement officers to conduct a warrantless search of his home. His wife, who was not at home at the time, gave permission, and the officers executed a search based on her permission. Using evidence obtained in this search, Mr. Garcia was tried in a 1998 court-martial. He was convicted of multiple counts of attempted robbery, larceny, related conspiracies, housebreaking, and interstate transport of stolen property, and was sentenced to a dishonorable discharge, a reduction in rank, forfeiture of pay and allowances, confinement of 75 years in prison, with 35 years suspended, and a fine of $60,000. See Compl., App. 10 at 1; United States v. Garcia, No. 9901513, 2007 WL 1704946, *1 (N.M. Ct. Crim. App. Jan. 10, 2007). Mr. Garcia successfully appealed this conviction, and the "findings, sentence, and the decision" were set aside based on a finding of ineffective assistance of counsel. Compl., App. 10 at 2. He was recharged in 2004 and this time pled guilty pursuant to an agreement whereby his sentence of confinement was effectively reduced to a total of 20 years. Id.; Compl. ¶ 48; Garcia, 2007 WL 1704946 at *1 & n.1.
Mr. Garcia then appealed the 2004 conviction resulting from his negotiated guilty plea to the Navy-Marine Court of Criminal Appeals. Mr. Garcia raised four alleged errors in his appeal:
He first argues that his pleas were improvident because he was misinformed both by his counsel and by the military judge as to the maximum punishment authorized. Second, the appellant asserts that he was denied his right to speedy post-trial review. Third, he avers that he suffered cruel and unusual punishment under the Eighth Amendment and under Article 55, UCMJ [Uniform Code of Military Justice]. Finally, he asserts that his trial defense counsel was ineffective.
Id. at *1. While this appeal was pending, the Supreme Court in March 2006 issued its decision in Georgia v. Randolph, 547 U.S. 103 (2006), holding that the Fourth Amendment's guarantee against unreasonable searches requires a rule to the effect that "a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." Id. at 122-23. In June 2006, Mr. Garcia executed a sworn statement asserting that he had relied on his 2004 trial counsel's incorrect advice that his Fourth Amendment challenges to the 1997 search of his home would be preserved even if he entered a negotiated guilty plea. See Compl., App. 5; Garcia, 2007 WL 1704946 at *3 & n.5. Both Mr. Garcia's declaration and a counter-declaration from his 2004 defense counsel were submitted to the Navy-Marine Court of Criminal Appeals where the appeal was still pending. Garcia, 2007 WL 1704946 at *3 & n.6. In considering Mr. Garcia's allegations of ineffective assistance of counsel, that court reviewed the two conflicting sworn statements in light of the record facts and, after a detailed and extensive discussion of the evidence, id. at *3-4, concluded that "the record 'compellingly demonstrates' the improbability of [Mr. Garcia's] factual assertions regarding the advice provided by his trial defense counsel." Id. at 4. The appeals court denied Mr. Garcia relief on all his claims.*fn1 Id. at 5. It also noted that "[t]he suppression motion was waived by [Mr. Garcia's] voluntary decision to enter pleas of guilty at his second trial." Id. at 4 n.12 (citing Rules for Courts-Martial ("RCM") 910(c)(4), Manual for Courts-Martial, United States (2002 ed.)). Subsequently, that same court issued an opinion on February 21, 2008, in response to Mr. Garcia's petition under 28 U.S.C. § 1651, in which it reiterated its determination that
[i]ssues arising from any rulings made during [Mr. Garcia's] 1998 court-martial are effectively mooted by our superior court's decision setting aside the results of that court-martial. Further, [Mr. Garcia's] subsequent decision to enter unconditional guilty pleas at his 2004 court-martial effectively waived any evidentiary issues relating to his factual guilt.
Compl., App. 10 at 2 (citing RCM 910(c)(4).
Mr. Garcia has continued without success to attempt to have his negotiated guilty plea overturned by application of the Randolph decision to the 1997 search.*fn2 In early 2008, he asked the Board for the Correction of Naval Records ("BCNR") to alter his record and his military discharge status. In this action, he seeks a judgment declaring that the BCNR's non-response is arbitrary and capricious, Compl. ¶ 11, and a mandatory injunction requiring the Secretary of the Navy to upgrade his dishonorable discharge to an honorable discharge, id. at 14, and to reinstate him "as a member of the United States Marine Corps with all duties, responsibilities and privileges earned... prior to his 2004 court-martial," id. at 15.
The APA provides for judicial review of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. The parties agree that this Court may review decisions by the BCNR under the APA, and that to succeed, a plaintiff must show that the BCNR's decision was "'arbitrary, capricious or not based on substantial evidence.'" Def.'s Mot. to Dismiss at 2(quoting Piersall v. Winter, 435 F.3d 319, 321-22 (D.C. Cir. 2006)); see also Pl.'s Mot. for Summ. J. at 2 (citing 5 U.S.C. § 706 (2)).
When Mr. Garcia submitted this Complaint for filing in early December 2008, he was under the mistaken impression that he was entitled to sue because the BCNR had not timely responded to his request, which he construed as a denial without adequate explanation. See Compl. ¶ 6 (citing 28 U.S.C. § 2675(a)). Mr. Garcia is incorrect that 28 U.S.C. § 2675(a) affords him the right to bring an action against the Secretary on the issues presented in this case, as that statute applies only to claims for damages brought under the ...