United States District Court, District of Columbia
MEMORANDUM OPINION 
P. Mehta, United States District Judge
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.
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.
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
the court is Defendants’ Motion to Dismiss the
Complaint. For the reasons described below, the court grants
Defendants’ Motion in its entirety.
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.
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.
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.
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
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).
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.
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.
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. ¶
Defendants 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.
Motion to Dismiss under Rule 12(b)(1)
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
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.
Motion to Dismiss under Rule 12(b)(6)
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)).
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.