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Palacios v. Spencer

United States District Court, District of Columbia

August 18, 2017

RICHARD V. SPENCER, Secretary of the United States Navy, Defendant.



         After 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), http:// As a result, veterans who receive OTH discharges often challenge their discharge status before an administrative board.

         That is 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”).

         The 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.

         I. Background

         Mr. 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.

         In 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.[1] Id. ¶ 16.

         Palacios 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.

         Palacios 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.

         In October 2016, Palacios brought this action against the Secretary of the Navy.[2] 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 adjudication.

         II. Standard of Review

         The 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).

         III. Analysis

         A. The Court Lacks Subject Matter Jurisdiction Over Palacios' Claim Because it Seeks ...

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