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National Veterans Legal Services Program v. United States Department of Defense

United States District Court, District of Columbia

August 19, 2016

National Veterans Legal Services Program, et al., Plaintiffs,
v.
United States Department of Defense, et al., Defendants.

          MEMORANDUM OPINION [1]

          Amit P. Mehta, United States District Judge

         I. INTRODUCTION

         Four Plaintiffs-two veterans services organizations and two Army veterans-filed this action to challenge various practices of the Army Board for Corrections of Military Records (“ABCMR” or “the Board”). The ABCMR is a civilian board whose members are appointed by the Secretary of the Army and tasked with the responsibility of reviewing applications submitted by servicemen and women for correction of military records. At least three Board members must review applications that are properly before the Board and determine whether to correct a military record on the ground that an error or injustice exists.

         The ABCMR Board members do not, however, operate alone. They have a staff, which assists the Board with receiving, processing, and reviewing applications. Plaintiffs’ primary challenge in this case concerns how the ABCMR uses its staff. They contend that the Board has unlawfully delegated to its staff the authority to review and return applications for lack of adequate documentation, in this case medical records. Plaintiffs contend that such discretionary tasks must be performed by a Board member only.

         Plaintiffs also challenge two other Board practices. They contend that the ABCMR impermissibly requires applicants-specifically here, the two individual plaintiffs-to acquire the medical records needed to complete their applications. Plaintiffs argue that the Board-rather than the applicants-bears that responsibility, but has failed to fulfill it. Additionally, Plaintiffs contend that the ABCMR has failed to make public two internal guidance documents, known as the “Screening Team Analyst Resource” and the “Handbook for ABCMR Board Members, ” which set forth rules and policies concerning the approval and denial of applications.

         Before the court is Defendants’ Motion to Dismiss the Complaint. For the reasons described below, the court grants Defendants’ Motion in its entirety.

         II. BACKGROUND

         A. Factual Background

         1. Plaintiffs

         Plaintiff National Veterans Legal Services Program (“NVLSP”) is a “not-for-profit organization that aims to ensure that the nation’s 25 million veterans and active duty personnel receive the benefits to which they are entitled because of disabilities resulting from their military service to our country . . . by providing and helping to facilitate the free-of-charge representation of veterans in proceedings before the military review boards, military administrative discharge boards, military medical and physical disability evaluation boards.” Complaint, ECF No. 1 [hereinafter Compl.], ¶ 15. Since 2007, NVLSP has operated a nationwide program called “Lawyers Service Warriors” through which it screens and assigns matters to volunteer attorneys from private law firms and corporate legal departments to represent veterans regarding, among other things, their applications to the ABCMR. Id. ¶ 16. NVLSP claims that it devotes resources to investigating “the unpublished rules, guidelines and practices under which the ABCMR operates in adjudicating applications, ” including the circumstances under which ABCMR applications are returned to applicants for additional information. Id.[2]

         The individual plaintiffs are two Army veterans. Plaintiff Angelo Duran was deployed in Iraq from August 8, 2006, to October 21, 2007. Id. ¶¶ 39-40. On April 21, 2013, Duran was honorably discharged for “completion of required active service.” Id. ¶ 52. On April 30, 2013, Duran applied to the ABCMR to change his records to instead reflect a medical discharge. According to the Complaint, a medical retirement would have “entitled Duran to receive significant military disability retirement benefits and military health care for him, his spouse, and his children that his current discharge status makes him ineligible to receive.” Id. ¶ 53. Duran alleges that he submitted copies of “numerous” Army medical records to substantiate that, at the time of his discharge, he suffered from post-traumatic stress disorder. Id.

         In a letter dated May 22, 2013, signed by Klaus Schumann, the ABCMR’s Chief of its Case Management Division, the ABCMR informed Duran that, in order for the ABCMR to consider his application, he would “need to provide all Army medical treatment records that w[ould] substantiate” his request and that the ABCMR “cannot process [his] application without the aforementioned documents.” Compl., Ex. A, Letter from Schumann to Duran (May 22, 2013) [hereinafter Duran Letter], ECF No. 1-1. The letter further stated that the ABCMR staff had “file[d] [his] application without action and without prejudice, ” and that Duran could reapply for ABCMR consideration with the necessary documentation. Id. The letter enclosed a blank application form for his convenience. Id.

         Plaintiff Scott Fink is an Army National Guard veteran who served in Iraq from January 4, 2005, to June 2, 2006. Id. ¶¶ 56-57. Fink was diagnosed with service-connected post-traumatic stress disorder. Id. at ¶ 58. On August 27, 2008, Fink was placed in the Inactive National Guard, with the reason for the transfer listed as “Individual’s Request.” Id. ¶ 60. Members of the Inactive National Guard do not earn “retirement points” for their service. Id. ¶ 61. The complaint alleges that, as a result of being placed in the Inactive National Guard, Fink has potentially lost tens, if not hundreds, of thousands of dollars in retirement benefits. Id. On April 7, 2012, Fink applied to the ABCMR to correct his military record in order to allow him to return to Active service and to finish his remaining three years. On his form, Fink stated that he was placed in the Inactive National Guard without his knowledge. His application packet also included his transfer form, which identified the reason for his transfer as “Individual’s Request.” Id. ¶ 62. On April 26, 2012, the ABCMR informed Fink, in a letter again signed by Klaus Schumann, that in order for the ABCMR to consider his request for a disability evaluation, he would “need to provide all Army medical treatment records that w[ould] substantiate” his request. Compl., Ex. B, Letter from Schumann to Fink (April 26, 2012) [hereinafter Fink Letter], ECF No. 1-2. The letter noted that the ABCMR “cannot process [Fink’s] application without the aforementioned documents, ” stated that Fink could reapply for ABCMR consideration with the necessary documentation, and enclosed a blank application for his convenience. Id.

         2. ABCMR

         The ABCMR is a board of civilians established within the Office of the Secretary of the Army. Id. ¶ 21. The ABCMR considers applications filed by soldiers and veterans for correction of military records. Id. The ABCMR has the authority to recommend and, in some cases, grant the correction of military records in the case of a material error or an injustice. See 10 U.S.C. § 1552; 32 C.F.R. § 581.3(b)(4)(ii).

         B. Procedural Background

         Plaintiffs have filed a three-count, class-action Complaint. The First Claim for Relief alleges that the ABCMR violated 5 U.S.C. § 704 of the Administrative Procedure Act (APA). Compl. ¶¶ 32, 74-80. It asserts that the members of the Board failed to review Duran’s and Fink’s applications, and the applications of other similarly situated applicants, and instead delegated that responsibility to ABCMR staff. Id. According to Plaintiffs, under 10 U.S.C. § 1552 and its implementing regulation, 32 C.F.R. § 581.3, the Board members lacked the authority to effect such a delegation of responsibility. Id. ¶ 78. Plaintiffs also contend that the Board members’ failure to review Duran’s and Fink’s applications violated the Due Process Clause of the Fifth Amendment of the Constitution. Id. ¶¶ 81-84.

         The Second Claim for Relief alleges that the ABCMR committed another violation of Section 704 of the APA by failing to obtain the medical records needed for Duran and Fink, and other similarly situated applicants, to complete their applications for correction. Id. ¶¶ 85-90. Plaintiffs contend that, under the ABCMR’s implementing regulation, the director of an Army records holding agency is supposed to furnish all requested records to the ABCMR to assist it in conducting a full and fair review. Id. ¶ 87. Plaintiffs further assert that the ABCMR regularly and “as a matter of practice fails to fulfill its duty to request assistance from the director of an Army records holding agency in seeking any records thought lacking from an application for corrections.” Id. ¶ 88.

         The Third Claim for Relief alleges that the ABCMR violated the APA yet again by failing to publish two internal guidebooks titled “Screening Team Analyst Resource” and a “Handbook for ABCMR Board Members.” Id. ¶¶ 91-93. Plaintiffs contend that the ABCMR was required to publish those guidebooks under the Freedom of Information Act, see 5 U.S.C. §§ 552(a)(1), (2). Compl. ¶ 92. Plaintiffs also assert that the failure to publish the guidebooks violates the Due Process Clause of the Fifth Amendment. Id. ¶ 98.

         III. LEGAL STANDARD

         Defendants[3] have moved to dismiss this matter on two grounds. First, they contend that all Plaintiffs lack standing under Federal Rule of Civil Procedure 12(b)(1), and therefore, the court is without subject matter jurisdiction to hear this matter. See Defs.’ Mem. in Supp. of Mot. to Dismiss, ECF No. 9 [hereinafter Defs.’ Mot.], at 10. Second, under Rule 12(b)(6), Defendants argue that Plaintiffs have failed to state a claim upon which relief can be granted. Id.

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

         On a motion to dismiss for lack of standing brought under Rule 12(b)(1), a federal court must presume that it “lack[s] jurisdiction unless the contrary appears affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (internal quotation marks omitted). The burden of establishing the elements of standing “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A plaintiff must establish standing “for each claim” and “for each form of relief sought, ” DaimlerChrysler, 547 U.S. at 352 (internal quotation marks omitted), “with the manner and degree of evidence required at the successive stages of litigation, ” Lujan, 504 U.S. at 561.

         When assessing a motion to dismiss predicated on lack of standing, the court must accept “well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). The court is not required to assume the truth of legal conclusions or accept inferences that are not supported by the facts set out in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007). “Threadbare recitals of the elements of [standing], supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. If a complaint lacks sufficient facts “to state a claim [of standing] that is plausible on its face, ” the court must dismiss it. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Arpaio, 797 F.3d at 19. When a court is assessing a Rule 12(b)(1) motion, it has broad discretion to consider materials outside the pleadings if they are competent and relevant. Finca Santa Elena, Inc. v. U.S. Army Corps of Eng’rs, 873 F.Supp.2d 363, 368 (D.D.C. 2012) (citing 5B Charles Wright & Arthur Miller, Federal Practice & Procedure § 1350 (3d ed. 2004)).

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

         “‘A complaint can be dismissed under Rule 12(b)(6) when a plaintiff fails to state a claim upon which relief can be granted.’” Howard Univ. v. Watkins, 857 F.Supp.2d 67, 71 (D.D.C. 2012) (quoting Peavey v. Holder, 657 F.Supp.2d 180, 185 (D.D.C. 2009) (citing Fed.R.Civ.P. 12(b)(6))). Motions to dismiss under Rule 12(b)(6) test the legal sufficiency of a complaint. See Smith-Thompson v. Dist. of Columbia, 657 F.Supp.2d 123, 129 (D.D.C. 2009).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to ‘state a claim to relief that is plausible on its face.’ . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “The complaint must be construed in the light most favorable to the plaintiff and ‘the court must assume the truth of all well-pleaded allegations.’” Watkins, 857 F.Supp.2d at 71 (quoting Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004)).

         Similar to a court’s review of a Rule 12(b)(1) motion, when evaluating a motion to dismiss under Rule 12(b)(6), the court also must accept a plaintiff's “factual allegations . . . as true, ” Harrisv. D.C. Water & Sewer Auth., 791 F.3d 65, 67 (D.C. Cir. 2015), and “construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schulerv. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). The court is not required to accept as true “a legal conclusion couched as a factual allegation, ” Papasan v. ...


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