RICARDO M. URBINA, District Judge.
The plaintiff is a white minister formerly employed as a Commander in the Navy
In November 1995, the Secretary issued an instructional memorandum or "precept" that convened a selection board to consider whether Chaplain Corps servicemembers at the rank of Commander should be made eligible for selective early retirement. Admin. R. at 4. In the "supplemental guidance" attached to the precept, the Secretary stated in relevant part as follows:
In August 1996, the plaintiff, a white minister who served as a Commander in the Chaplain Corps, was "involuntarily retired"
The plaintiff subsequently submitted a petition to the BCNR for reconsideration of its decision, which the BCNR accepted in March 2003. Id. at 136-37, 165. In December 2003, the plaintiff amended his petition for reconsideration to include allegations that the SERB's decision forcing his early retirement had been guided by a "precept" which "established a preference for minority personnel." Pl.'s Mot. at 2; Admin. R. at 186-87. The plaintiff asked that the SERB decision be overturned "because the [precept] constituted illegal reverse racial discrimination." Pl.'s Mot. at 3; Admin. R. at 184-85.
The BCNR again requested comments and a recommendation from the OJAG. Admin. R. at 253. The OJAG acknowledged that other selection boards had used "[t]he practice of regrading," which involved "taking the preliminary results of the selection board, and re-grading minority candidates where there [was] a discrepancy between the selection rates of minority and non-minority candidates." Id. at 263. The OJAG concluded, however, that "improper re-grading of minority candidates" had not occurred in the 1996 SERB decision and the controlling precept "did not instruct or even permit members to re-grade minority officer records." Id. at 255. The BCNR denied the plaintiff's petition for relief upon reconsideration in July 2004, determining that "the precept did not mandate preferential treatment for minorities, but merely encouraged fair and equitable consideration of all officers." Id. at 290-93.
In August 2004, the BCNR accepted the plaintiff's second petition for reconsideration, in which he alleged that the composition of the SERB that rendered the decision forcing the plaintiff's early retirement was contrary to Navy regulations and that the SERB had improperly selected him for early retirement based on criteria which did not apply to him. Id. at 420. The BCNR denied his second petition in March 2005. Id. at 651-53.
In May 2006, the plaintiff, through counsel, submitted a "pre-litigation letter" to the OJAG in which he asserted that he would be seeking judicial review of the BCNR's decisions denying his requested relief. Id. at 654. In the letter, the plaintiff offered to settle the matter, arguing that the Navy's policy demonstrated a preference for minorities that was illegal and therefore the Navy should "deem [the plaintiff] to have remained on active duty through the date of mandatory retirement by reason of age and to refer his record to a Special Selection Board to consider him for promotion to Captain." Id. at 655. The BCNR construed this letter as another request for relief upon reconsideration and forwarded it to the Navy's Assistant General Counsel ("AGC") for comment and a recommendation. Id. at 669.
The AGC determined that "a new [BCNR] panel should be expeditiously convened" to evaluate the contested language in the SERB precept and the effect, if any, that it had on the plaintiff. Id. at 670; see also Pl.'s Mot. at 5. The AGC also directed the BCNR to seek an advisory opinion from the OJAG and asked that the
In its advisory opinion, the OJAG recommended that the BCNR deny the plaintiff's reconsideration request because the plaintiff had not presented any "new and material evidence or other matter not previously considered by [the] BCNR." Id. at 676. More specifically, the OJAG determined that the plaintiff had not provided any evidence to support his allegation that the challenged precept "caused his selection for involuntary retirement." Id.
On December 8, 2006, the BCNR issued its decision, adopting the OJAG's recommendation and denying the plaintiff's request for relief upon reconsideration. Pl.'s Mot. at 5; see also Admin. R. at 691-93. The BCNR concluded that the plaintiff had provided no evidence, such as statistics, which would "show that the precept language [had] disadvantaged [him]." Admin. R. at 692. The BCNR also determined that "[b]efore applying to this Board, [the plaintiff had] exhausted all administrative remedies which were available under existing law and regulations within the Department of the Navy." Id. at 692. The AGC then reviewed and approved the BCNR's decision. Id. at 693.
On December 11, 2006, the plaintiff commenced this action, requesting that the court set aside the BCNR's decision and order the defendant to "reinstate him on active duty; correct his record to show that he was never retired ... by expunging all reference to the SERB; and cause him to be considered for promotion to Captain." See generally Compl. at 5. The plaintiff characterizes his complaint as strictly an action under the Administrative Procedure Act and explains that he is not seeking direct review of the SERB decision, but rather, review of the BCNR's decision to deny him relief. Pl.'s Mot. at 7; Pl.'s Reply at 3.
A few months after the plaintiff commenced this action, the defendant moved to dismiss the complaint, arguing that the court lacked jurisdiction over the plaintiff's claims. See generally Def.'s Mot. to Dismiss. In response, the plaintiff filed a motion for summary judgment and opposition to the defendant's motion to dismiss, see generally Pl.'s Mot. for Summ. J. & Opp'n Def.'s Mot. to Dismiss ("Pl.'s Mot."). The defendant's motion to dismiss was summarily denied by another member of this court to whom this case was originally assigned.
Federal courts are courts of limited jurisdiction and the law presumes that "a
Because "subject-matter jurisdiction is an `Art[icle] III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Because subject matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. See Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Instead, "where necessary, the court may 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) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)).
The defendant asserts that the court lacks jurisdiction over the plaintiff's claim because the plaintiff failed to exhaust his administrative remedies. Def.'s Cross-Mot. at 7-9. More specifically, the defendant argues that the plaintiff failed to request that a "special board" review the 1996 SERB decision, in violation of 10 U.S.C. § 1558(f)(1), and that the plaintiff's failure to exhaust his administrative remedies deprives the court of jurisdiction over his claim. Id. at 8.
The plaintiff does not dispute that he was required to "exhaust[] a `special board' remedy as a precondition to a judicial challenge to a SERB" decision, but argues that he satisfied this requirement by obtaining the BCNR's review of the SERB's recommendation. Pl.'s Mot. at 6. The plaintiff asserts that he requested that his case be referred to a special selection board to consider his retroactive promotion to Captain and maintains that the BCNR board that entertained his request constituted a "`special board' for [special selection board] purposes." Id. at 2. The plaintiff also points out that under § 1558(b)(1)(B), the BCNR can serve as such a "special board" and that "the BCNR itself explicitly found that [the plaintiff] had exhausted his remedies" and "saw no impediment to its consideration of the claim." Id. at 6-7. Lastly, the plaintiff contends that the defendant's argument comes "much too late," suggesting that the defendant waived any objection based on exhaustion of administrative remedies by not raising such an objection previously
"[A]n aggrieved military officer must first exhaust his administrative remedies... prior to litigating his claims in federal court." Bois v. Marsh, 801 F.2d 462, 468 (D.C.Cir.1986) (holding that "settled principles of law requiring exhaustion of administrative remedies" applied to an officer's claim seeking to correct her military record based on purported constitutional violations by the Army). Indeed, 10 U.S.C. § 1558(f)(1) provides that
10 U.S.C. § 1558(f)(1) (emphasis added). Thus, only after a special board has considered the plaintiff's claim or, in the alternative, the Secretary has denied the plaintiff consideration of his claim by a special board, can the court review the plaintiff's claim and provide appropriate relief. Id. § 1558(f)(2)-(3) (setting forth the standards for judicial review of the Secretary's decision not to convene a special board and the standards to review the recommendation by a special board); see also Martinez v. United States, 333 F.3d 1295, 1305 (Fed. Cir.2003) (observing that "[w]hen Congress expressly requires exhaustion of administrative remedies before suit is brought, exhaustion is, of course, mandatory"); Christensen v. United States, 60 Fed.Cl. 19 (Fed.Cl.2004) (noting that 10 U.S.C. § 1558 requires that the military service determine whether "to refer correction of an erroneous decision to retire an officer to a special board"); Cotrich v. Nicholson, 2006 WL 3842112, at *2 (M.D.Fla. Dec. 19, 2006) (dismissing the case, inter alia, for lack of jurisdiction due to the plaintiff's failure to exhaust the administrative procedures in § 1558).
A "special board" is defined as "a board that the Secretary ... convenes under any authority to consider whether to recommend a person for .... retirement." 10 U.S.C. § 1558(b)(1). The "term ['special board'] includes a board for the correction of military records ... if designated as a special board by the Secretary." Id.
Like a "special board," a "selection board" is a board convened by the Secretary to recommend persons for retirement. Id. § 1558(b)(2)(A). A "selection board," however, "does not include ... [a] special board." Id. § 1558(b)(2)(A)-(B). Indeed, the statute indicates that at least one purpose of a special board is to review those decisions issued by a selection board, suggesting that the two are wholly separate bodies. See § 1558(f)(1).
To add further complication, there is a third type of review board — a "special selection board" — that may be convened in personnel challenges brought in the military context. A "special selection board" is a board convened to consider an officer's eligibility for a promotion, 10 U.S.C. § 628, or to review the decision by a selection board not to recommend an officer (or a former officer) for promotion, 10 U.S.C. § 14502. Again, a special selection board is separate and distinct from both a selection board; id. § 1558(b)(2)(B)(iii) (excluding a special selection board from the definition of a selection board), and a special board, id. § 1558(b)(1)(C) (excluding a special selection board from the definition of a special board).
The parties agree that the special board requirement set forth in § 1558(f) applies
Similarly, the BCNR's determination that the plaintiff exhausted all of his administrative remedies does not demonstrate that the plaintiff satisfied the special board requirement. Pl.'s Reply at 2. Although the BCNR stated in its decision that "[b]efore applying to this Board, [the plaintiff] exhausted all administrative remedies which were available under existing law and regulations within the Department of the Navy," Admin. R. at 692, that statement confirms only that the plaintiff had aptly exhausted the remedies necessary for the BCNR to hear his claim. Indeed, the BCNR had no reason to comment on whether the plaintiff had exhausted those administrative remedies that must be satisfied prior to seeking judicial review. Nor has the plaintiff offered any support for his contention that the BCNR's determination that he exhausted his administrative remedies would in any way bind this court, particularly when Congress has stated that a special board exhaustion requirement must be met in order to allow this court to grant relief. 10 U.S.C. § 1558(f); see also FED.
The plaintiff's final argument is that the defendant waived any argument with regard to his purported failure exhaust his administrative remedies because it did not previously raise the issue before the BCNR. Pl.'s Reply at 3. This argument too falls flat. First, as the defendant plainly had no obligation to argue before the BCNR that a federal court in some future action would lack jurisdiction because the plaintiff had not exhausted his administrative remedies under § 1558(f). Moreover, "it is this court's responsibility to consider subject matter [jurisdiction] even if the parties fail to raise the issue." Ctr. for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory Comm'n, 781 F.2d 935, 944 (D.C.Cir.1986) (citing FED. R. CIV. P. 12(h)). Thus, the defendant could not have waived the plaintiff's exhaustion requirement found in § 1558(f) because meeting that requirement is necessary to invest this court with proper jurisdiction.
In sum, the plaintiff failed to exhaust the requirement of § 1558(f) by requesting that the Secretary convene a special board to consider the 1996 SERB decision at issue in his claim. Because the plaintiff does not dispute that he was required to have his SERB's 1996 decision reviewed by a special board prior to seeking judicial review in this court and because he does not demonstrate that he fulfilled this exhaustion requirement, the court lacks jurisdiction to hear the plaintiff's claim. Accordingly, the court grants the defendant's motion and dismisses without prejudice the plaintiff's complaint for lack of subject matter jurisdiction.
For the foregoing reasons, the court grants the defendant's motion to dismiss, denies without prejudice the defendant's motion, in the alternative, for summary judgment, and denies the plaintiff's motion for summary judgment. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 10th day of May, 2011.
