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Isaac J. Morrison v. Secretary of Defense

January 12, 2011

ISAAC J. MORRISON, PLAINTIFF,
v.
SECRETARY OF DEFENSE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

In 1986, Plaintiff, then a United States Marine, was found guilty in a non-judicial proceeding (NJP) of unauthorized absence from duty. He was discharged from service in 1988. In 2008, Plaintiff applied to the Board of Corrections of Naval Records (BCNR) for removal of the NJP proceedings from his records and reinstatement into the Marine Corps with back pay and promotions, a 10-year service obligation, and 30-year benefits. The application was denied. Two years later, Plaintiff commenced this action for review of the Board's decision under the Administrative Procedure Act (APA).

Before the Court is Defendants' motion to dismiss Plaintiff's non-APA claims for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). Defendants thus contend that Plaintiff alleges not only a claim for APA review, but also nonAPA claims for removal of NJP proceedings from his records and reinstatement into the Marine Corps with back pay and promotions, a 10-year service obligation, and 30-year benefits.

Defendants argue that the Court lacks subject-matter jurisdiction over non-APA claims for monetary relief, that non-APA claims for injunctive relief are non-justiciable, and that all nonAPA claims are time-barred. It is, however, clear that Plaintiff does not allege any non-APA claims and, thus, this portion of the motion will be denied.

Further, despite contending on one hand that Plaintiff's APA claim should not be dismissed, Defendants also argue on the other hand that Plaintiff fails to state such a claim upon which relief may be granted under Rule 12(b)(6) because, contrary to what Plaintiff pleads, the standard of review for an APA claim is not de novo. The Court, however, will broadly construe the complaint to allege a valid APA claim that the Board's actions were arbitrary and capricious, and Plaintiff sufficiently alleges that Board overlooked certain evidence that it was required to consider. That portion of the motion seeking dismissal of Plaintiff's APA claim will therefore also be denied.

II. BACKGROUND

Plaintiff Isaac J. Morrison enlisted in the United States Marine Corps on September 20, 1978, for a term of four years, and thereafter reenlisted for an additional six years. Compl. at 2, ECF No. 1; Letter from W. Dean Pfeiffer, Exec. Director, BCNR, to Issac J. Morrison (Oct. 2, 2008), at 1, ECF No. 1 [hereinafter "Letter"]. On July 10, 1986, the Marine Corps meted out non-judicial punishment to Plaintiff for an unauthorized absence from duty. Compl. at 2; Letter at 1. Plaintiff did not appeal the NJP. See Compl. at ECF p. 17. Plaintiff was discharged on January 13, 1988. Letter at 1--2.

Over two decades later, Plaintiff filed an application with the BCNR, asking the Board to "set aside" the non-judicial punishment of July 10, 1986, remunerate "all pay and allowances" to which Plaintiff would have been entitled between the NJP and his discharge, and return Plaintiff to active duty with a 10-year service obligation and 30-year benefits. Mem. to Exec. Director, BCNR, from G.L. Simmons, Head, Mil. L. Branch, Judge Advocate Div. (July 3, 2008) ¶ 3.b., ECF No. 1 [hereinafter "Mem."]. The Board denied the application. See Letter. Plaintiff now appeals that denial to this Court.

III. STANDARDS OF REVIEW

A. Motion to Dismiss Under Rule 12(b)(1).

Federal courts have limited jurisdiction and may not presume the existence of jurisdiction in order to decide a case on other grounds. Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981). Instead, the party claiming subject-matter jurisdiction bears the burden of demonstrating that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). In ruling on a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), a court may, where necessary, "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

B. Motion to Dismiss Under Rule 12(b)(6).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" such that a court may "'draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). In ruling on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity ...


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