United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
two and a half years of service in the U.S. Marines Corps,
plaintiff Frank Palacios was discharged “under other
than honorable conditions” based on a “pattern of
misconduct.” This type of discharge, known as an
“OTH, ” has consequences for veterans'
retirement benefits and often hurts their prospects for
civilian employment. See Marisa Penaloza,
“Path to Reclaiming Identity Steep for Vets with
‘Bad Paper, '” NPR (Dec. 11, 2013 4:58 AM),
As a result, veterans who receive OTH discharges often
challenge their discharge status before an administrative
what Palacios did here. Beginning several years after leaving
service, he filed a series of unsuccessful challenges to his
discharge status. The Board for Correction of Naval Records
denied his application for correction of his status in 2010,
and Palacios requested that the Board further consider his
application in 2013. After the Board denied that request in a
January 2015 decision, Palacios brought this action against
the Secretary of the Navy. He contended that the Board's
decision was arbitrary and capricious, and therefore invalid
under the Administrative Procedure Act (“APA”).
The Secretary has moved to dismiss the case on jurisdictional
grounds, contending first that Palacios' suit is untimely
and, alternatively, that jurisdiction under the APA is
lacking because Palacios could have obtained adequate relief
under another statute. See 5 U.S.C. § 704
(permitting judicial review of agency action only where
“there is no other adequate remedy in a court”).
Court agrees that it lacks jurisdiction over Palacios'
claim, but for a different reason than those offered by the
government. Jurisdiction is lacking because Palacios seeks
monetary relief from the United States and, under the Tucker
Act, such claims may be brought only in the Court of Federal
Claims. The Court will therefore dismiss this case.
Palacios served in the Marine Corps from August 1992 until
February 1995. Compl. ¶ 9. He claims that, throughout
his service, he suffered from chronic lower back pain.
Id. ¶ 10. Palacios sought a discharge for
medical reasons, but before he finished the requisite medical
evaluation process, he was instead discharged for a
“pattern of misconduct”-apparently,
“deficiencies in weight control and military
performance.” Id. ¶ 10-11.
2002, Palacios appealed his discharge to the Naval Discharge
Review Board (“NDRB”), which denied his
challenge. He then requested a hearing before that body, but
the NDRB told him that a different agency, the Board for
Correction of Naval Records (the “BCNR” or
“Board”), was responsible for reviewing
discharges involving medical issues. Id. ¶ 16.
appealed his discharge status to the BCNR in 2009.
Id. It denied his challenge on September 22, 2010,
citing the “seriousness of [his] repetitive
misconduct.” Id. ¶ 17. Palacios then
sought review of that denial in the Court of Federal Claims.
Mot. Dismiss app. 1, at 1. That court dismissed the action
for lack of subject matter jurisdiction, finding that
Palacios' challenge was untimely. Id. at 2.
returned to the BCNR in September 2013, requesting that it
reconsider its prior denial. In a letter dated January 22,
2015, the BCNR denied his request. Id. app. 3, at 1.
The Board explained that it had made a “careful and
conscientious consideration of the entire record.”
Id. And it acknowledged that Palacios had raised a
“new argument” in his request for
reconsideration-that his “discharge was causally
connected to [his] ‘diminished physical and mental
condition' stemming from an injury to [his] lumbar
spine.” Id. But the Board found the argument
“insufficient to warrant further consideration of
[Palacios'] application.” Id.
October 2016, Palacios brought this action against the
Secretary of the Navy. He claimed that the BCNR's 2015 denial
of reconsideration was “arbitrary, capricious,
unsupported by substantial evidence, and contrary to law,
” and therefore unlawful under the APA. Compl. ¶
2; see 5 U.S.C. § 706(2)(A). The government now
moves to dismiss the case under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.
It contends that Palacios filed his suit outside the six-year
statute of limitations that applies to APA claims and that,
in any event, Palacios cannot establish jurisdiction under
the APA because he has an “other adequate remedy in a
court, ” 5 U.S.C. § 704 -namely, under the Tucker
Act, 28 U.S.C. § 1491(a)(1). The motion is ripe for
Standard of Review
plaintiff bears the burden of establishing a court's
subject matter jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). Where, as
here, the defendant does not challenge the factual
underpinnings of the complaint, the Court must accept the
plaintiff's factual allegations as true. United
States v. Gaubert, 499 U.S. 315, 327 (1991).
Court Lacks Subject Matter Jurisdiction Over Palacios'
Claim Because it Seeks ...