JOSEPH F. BIANCO, District Judge.
This lawsuit arises from a military disciplinary proceeding that recommended Major Jason Brezler's dismissal from the United States Marine Corps. Major Brezler ("plaintiff") brings this action against Lieutenant General Richard Mills, the United States Marine Corps, and the United States Department of the Navy (collectively, "the government" or "defendants"), challenging the disciplinary proceeding under the Administrative Procedure Act ("APA"), the Due Process clause, and the military regulations for conducting disciplinary proceedings.
Major Brezler has served in the Marine Corps for fourteen years, and has deployed overseas four times. He is currently a major in the United States Marine Corps Reserve, assigned since 2010 to duties at the Marine Reserve facility in Garden City, Long Island, where he is presently enrolled in the Marine Corps Command and Staff College.
According to the complaint, this lawsuit traces back to the summer of 2012, when plaintiff warned Marines deployed in Afghanistan about a dangerous individual. On August 10, 2012 — two weeks after that warning — three Marines were murdered in the Forward Operating Base Delhi gymnasium in Afghanistan. Plaintiff asserts that senior Marine Corps officials have engaged in a "concerted two-year long effort ... to cover-up the severe lapses and other highly damaging misconduct that led to those
Defendants counter that, on July 25, 2012, plaintiff transmitted classified data via an unsecure, commercial e-mail account, which led the Naval Criminal Investigative Service to investigate plaintiff's handling of classified documents. According to the government, that investigation "revealed that Major Brezler had stored more than 100 official documents, including classified documents, on his personal laptop and/or external storage device." (Def. Mem. at 1.) Following that investigation, Major Brezler was referred to a Board of Inquiry for additional factfinding regarding his potential violation of regulations governing the handling of classified information. The Board of Inquiry conducted a hearing and recommended an honorable separation, but additional levels of administrative review of that recommendation are pending.
The present motion seeks a preliminary injunction prohibiting the Marine Corps from either acting upon the separation recommendation or proceeding any further in the disciplinary process. In the alternative, plaintiff seeks an injunction compelling the Navy to provide an accurate transcript of the initial disciplinary hearing.
For the reasons discussed below, the Court denies plaintiffs motion. In particular, it is well settled that an agency action must be final before judicial review of that decision is available under the APA. In the instant case, the record clearly demonstrates that the decision to separate plaintiff from the Marine Corps is not final; rather, it is a Board of Inquiry recommendation. As a result, plaintiff has additional layers of process available to him within the Department of Defense before any prospective order becomes final — namely, (1) the record and recommendation are currently under review by the Staff Judge Advocate to the Commandant of the Marine Corps; (2) following that review, the recommendation will be reviewed by the Deputy Commandant, Manpower and Reserve Affairs; and (3) after that review, the record will be sent to the Secretary of the Navy for a final determination. Although plaintiff argues that the finality requirement is met because the Board of Inquiry has made factual findings, the Court is not persuaded by that argument. Importantly, the regulatory procedures currently available to plaintiff still allow for remand of the case for further factfinding, including a new hearing, if warranted. Therefore, there is nothing final about the Board of Inquiry findings. In any event, the final, reviewable, agency action in this case will be the separation determination by the Assistant Secretary (if such a determination is ever made), and not the preliminary factual findings.
The Court recognizes that Major Brezler has raised serious allegations about the circumstances surrounding the murders of three United States Marines in Afghanistan, and that Major Brezler's career in the Marine Corps is being jeopardized by a disciplinary proceeding that he asserts was flawed. However, the Court's jurisdiction is limited by the finality requirement of the APA, and the Court cannot immediately review the merits of plaintiff's challenges to the disciplinary proceedings simply because important interests are at stake and due process challenges are being raised. Instead, the Court must properly adhere to the jurisdictional boundaries imposed by Congress
Finally, the Court notes that plaintiff's counsel suggested at oral argument that Major Brezler is also asserting a First Amendment retaliation claim — namely, that Major Brezler was only referred to the Board of Inquiry because senior Marine Corps officials were unhappy with news coverage suggesting that Major Brezler had spoken to Congressman Peter King about the three murdered Marines in Afghanistan. However, no First Amendment claim appears in the complaint. Thus, Major Brezler must amend the complaint if he wishes to assert a separate cause of action for First Amendment retaliation that is independent of the APA. If such a claim were asserted, it would not be subject to the finality requirement of the APA. Nevertheless, this Court would still have to analyze whether the exhaustion doctrine should apply to that claim, as a matter of judicial discretion, if the Marine Corps is currently reviewing the facts surrounding that claim. Under certain circumstances, courts (including the Second Circuit) have allowed First Amendment claims to proceed against the military without requiring exhaustion. See, e.g., Able v. United States, 88 F.3d 1280 (2d Cir.1996). Regardless, the Court's evaluation of those issues must await a formal amendment to the complaint to add a First Amendment retaliation claim.
Because this lawsuit challenges the manner in which the Marine Corps is conducting Major Brezler's disciplinary proceeding, a discussion of the relevant administrative framework is necessary.
Applicable here are three sections of the United States Code, Title Ten, governing the involuntary separation of officers from the armed forces: 10 U.S.C. § 1181, § 1182 and § 14903. Together, Sections 1182 and 14903 provide that the "military department concerned" (here, the Marine Corps) must convene a "board of inquiry" to receive evidence in the case of any officer who has been required to show cause why he should not be separated. Section 14903 requires the board of inquiry to make a recommendation to the Secretary of the Navy, who reviews the recommendation and decides whether to remove the officer or close the case.
However, Section 1181 confers on the Navy the authority to establish its own specific procedures for implementing the board of inquiry process. The primary Navy regulations that govern separation proceedings are Secretary of the Navy Instruction 1920.6C, entitled "Administrative Separation of Officers," and Marine Corps Order P5800.16A, entitled "Marine Corps Manual for Legal Administration."
Under these Navy regulations, separation proceedings for Marines occur in the following manner.
The following facts are taken from the complaint and from plaintiff's submissions in support of the present motion. The government has not submitted materials to contradict all of plaintiff's factual allegations, but instead has taken the position that "Major Brezler's Motion is filled with unsupported allegations and arguments that are entirely irrelevant to the claims at issue and the relief sought. Stripped of the Motion's conclusory conspiracy theories and innuendo, however, the relevant facts in this action are largely not in dispute." (Def. Mem. at 1.) The Court has reviewed the parties' submissions, and the following is a summary of the facts submitted by the plaintiff that are not disputed by the government.
Plaintiff is a reservist in the United States Marine Corps, assigned to the Marine Reserve facility in Garden City, Long Island. (Declaration of Jason Brezler, ECF No. 6-6 ("Brezler Decl."), at ¶ 2.) In July 2012, while plaintiff was in Oklahoma, plaintiff received an email from a fellow Marine deployed in Afghanistan. (Brezler Decl. at ¶¶ 11-14.) Plaintiff responded to that email, and attached a classified document. (Id.) The email was sent over unsecured channels from plaintiff's private email address. (Id.) Following the transmission, the Naval Criminal Investigative Service investigated plaintiff's handling of classified information. (Id. at ¶ 20.) Plaintiff avers that the NCIS did not recommend any disciplinary action. (Id. at ¶ 20.) The Navy convened a Board of Inquiry ("BOI") for further fact-finding as to whether plaintiff had violated military regulations governing classified material. (Id. at ¶ 30-34.) After a hearing, the BOI recommended "that the respondent be separated from the Naval Service with an Honorable characterization of discharge." (Board of Inquiry Report, ECF No. 6-1.) That recommendation is subject to further administrative review, which has not yet occurred.
On December 22, 2014, plaintiff commenced this action and sought a temporary restraining order prohibiting defendants from acting upon the BOI's recommendation. (See Proposed Order, Docket Entry 9.) On that same day, the Court held a hearing and denied plaintiff's request for a temporary restraining order, but ordered defendants to respond to the request for a preliminary injunction.
The crux of plaintiffs claim is that he believes the disciplinary proceedings were convened in order to "silence and discredit"
In opposition to the motion, the government has not responded to all of the details of these claims, arguing that these allegations are irrelevant because plaintiff's motion fails on procedural grounds. Additionally, the government asserts that the BOI has responded to plaintiff's challenge to the transcript, and a court reporter has reviewed the audio of the hearing and produced a new transcript containing approximately 284 notations of "inaudible." (Def. Mem. at 7.)
At oral argument, plaintiff contested the government's representation that the new transcript is adequate. In response, the government noted that the Navy has disclosed the underlying audio recordings to plaintiff, and that if plaintiff nonetheless finds the transcript to be inadequate, he may raise this issue administratively. Furthermore, the Staff Judge Advocate to the Commandant of the Marine Corps has the discretion to remand the case for further fact-finding.
This matter is fully submitted, and the Court has thoroughly considered the submissions of the parties.
In order to prevail on a motion for a preliminary injunction, a party must establish: "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d Cir.2004) (quoting Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002)). "To establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent." Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989) (internal quotation marks omitted).
The Court first considers the second prong of the preliminary injunction standard — that is, whether plaintiff is likely to be successful on the merits, or whether this case presents sufficiently serious questions going to the merits to make them a fair ground for litigation. Plaintiff has asserted claims under the APA, the Due Process clause, and Instruction 1920.6C of the Board of Inquiry procedures. (Complaint, ¶ 5.) The Court considers these claims in turn. As discussed below, the Court concludes that the second prong is not met because (1) the Court lacks jurisdiction over the APA claim at this juncture given the absence of the requisite final agency action; and (2) any attempt to
Plaintiff challenges the BOI's recommendation under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"). The APA provides that a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law...." See 5 U.S.C. § 706(2)(B).
The government contends that plaintiff is procedurally barred from seeking review under the APA because plaintiff has not exhausted his administrative remedies. The government chiefly relies upon Guitard v. United States Sec'y of Navy, 967 F.2d 737 (2d Cir.1992). In that case, the Second Circuit reversed a preliminary injunction barring the Navy from discharging a member of the Naval Reserve, on the grounds that the plaintiff had failed to exhaust his administrative remedies. As the Second Circuit explained, "[u]nder the exhaustion rule, a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." Id. at 740 (emphasis added) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Schlesinger v. Councilman, 420 U.S. 738, 756, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)). Guitard emphasized that "[t]he imperatives concerning military discipline require the strict application of the exhaustion doctrine in discharge cases." Id. See also Michaelson v. Herren, 242 F.2d 693, 696 (2d Cir.1957) (holding that district court "could not properly assume to exercise [] jurisdiction until the plaintiff had exhausted the review processes which the statute provided for the military establishment.").
Plaintiff argues that the ruling in Guitard has since been abrogated by the Supreme Court's ruling in Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), which was decided a year later. In Darby, the plaintiff sought to challenge an order issued from an Administrative Law Judge in the Department of Housing and Urban Development. Id. at 139-40, 113 S.Ct. 2539. The Fourth Circuit had held that plaintiff's claims were barred under the exhaustion rule, and the Supreme Court reversed. Id. at 142, 113 S.Ct. 2539. In so ruling, the Supreme Court limited the exhaustion rule, holding that, where agency action has become final, courts can impose an exhaustion rule only when expressly required by statute. Id. at 151, 113 S.Ct. 2539. (Where the APA applies, "an appeal to `superior agency authority' is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.") (emphasis in original). In other words, once an agency action becomes final, a plaintiff need not seek further review within the agency before seeking judicial review, unless a specific statute requires otherwise. In the present case, there is no question that exhaustion is not required by statute.
It is uncertain whether there is an exception to the Darby rule for military discipline cases, to avoid undue judicial interference with the armed forces. As plaintiff points out, many courts have declined
The Court need not resolve the tension between Guitard and Darby at this juncture, because the rule of Darby is only implicated where a plaintiff seeks review of a final agency action. Darby itself makes this clear, because the Court's evaluation of the exhaustion requirement was premised on Section 10(c) of the APA, which provides that judicial review is available for "final agency action." Darby, 509 U.S. at 142, 113 S.Ct. 2539 (quoting 5 U.S.C. § 704). In fact, the Darby Court, quoting prior precedent, clearly explained the distinction:
Darby, 509 U.S. at 144, 113 S.Ct. 2539 (quoting Williamson Cnty. Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)); see also Top Choice Distribs., Inc. v. United States Postal Serv., 138 F.3d 463, 466 (2d Cir. 1998) ("Finality is an explicit requirement of the APA, while exhaustion is a judge-made creation....").
Thus, even though Darby does not require exhaustion under the APA, it is well established that "the APA explicitly requires that an agency action be final before a claim is ripe for review." See Air Espana v. Brien, 165 F.3d 148, 152 (2d Cir.1999) (citing Top Choice Distribs., Inc. v. United States Postal Serv., 138 F.3d 463, 466 (2d Cir.1998)). The purpose of the finality requirement is to accord the agency "an opportunity to apply its expertise and correct its mistakes," as well as to avoid disrupting the agency's processes and to relieve the courts from piecemeal (and possibly unnecessary) review. Id. (quoting DRG Funding Corp. v. Secretary of Hous. and Urban Dev., 76 F.3d 1212, 1214 (D.C.Cir.1996)). The Second Circuit has defined the finality requirement as follows:
Sharkey v. Quarantillo, 541 F.3d 75, 88 (2d Cir.2008) (quoting Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)).
In the instant case, there can be no question that the BOI's recommendation is not a final agency action. The BOI report is only a recommendation, and it is subject to several layers of review before it may potentially be adopted. Specifically, the recommendation from the BOI (which has been endorsed by the Show Cause Authority) must be reviewed by the Staff Judge Advocate to the Commandant of the Marine Corps, after which the Deputy Commandant will review the case. After those two rounds of review, the Secretary of the Navy will review the final recommendation and decide whether to direct plaintiff's
Perhaps mindful of the procedural hurdles to presenting claims under the APA, plaintiff has also styled his case as a freestanding constitutional challenge to the disciplinary proceedings under the Due Process clause. Constitutional claims brought independently of the APA are not subject to the finality requirement. However, because such claims also operate out-side the scope of Darby, the exhaustion rule applies to such claims as a matter of judicial discretion.
Here, as in Guitard, plaintiff challenges the disciplinary proceedings on Due Process grounds, claiming that the procedures used in the disciplinary proceedings were illegal. Applying the Able factors, the Court readily concludes that exhaustion should be required of any due process claim here. Plaintiff has ample access to process within the Navy proceedings, and therefore he has genuine opportunities for adequate relief. If there were procedural defects in the BOI proceedings, then plaintiff can raise these issues before the agency. It is possible that the Navy may in fact agree with plaintiff, and remand the proceedings to the BOI for further fact finding. Finally, although plaintiff's Due Process claim is brought under the Constitution, this claim is not the type of discrete constitutional issue that exempted the plaintiff in Able from the exhaustion requirement. In Able, the question before the court was whether the "Don't Ask, Don't Tell" policy was constitutional. Here, plaintiff does not contend that the military regulation governing the use of confidential materials is itself unconstitutional. Instead, plaintiff challenges the manner in which the BOI proceedings were conducted. For this reason, the nature of plaintiff's claims do not exempt plaintiff from the exhaustion rule.
Furthermore, even apart from the exhaustion issue, plaintiffs due process claims cannot proceed because they are unripe. This is because plaintiff has not yet been disciplined, and thus has not yet suffered a cognizable deprivation. See Thomas v. City of New York, 143 F.3d 31, 34-35 (2d Cir.1998) (affirming dismissal of procedural due process claim as unripe, where plaintiffs claimed the City's licensing application procedures denied due process, but plaintiffs had not yet been denied a license under the process they claimed was unlawful); Coffran v. Board of Trustees, 46 F.3d 3, 3 (2d Cir.1995) (due process claim arising from medical board's recommendation that a police officer be involuntarily retired was not ripe for review). The Court therefore concludes that, even if plaintiff were to style his APA
To the extent plaintiff seeks to enforce regulations of the Department of Navy as a separate cause of action, that claim also cannot proceed. (Compl. at ¶ 5.) Plaintiff cannot possibly be arguing that Navy regulations give rise to a private right of action enforceable in federal court. Instead, it appears that plaintiff is arguing that the disciplinary proceeding is invalid because the agency failed to comply with its own regulations. That is a claim that plaintiff must raise under the APA, after the agency takes final action subject to judicial review. Plaintiff cannot assert claims under Navy regulations in order to avoid the APA's procedural requirements.
At oral argument, plaintiff's counsel argued that exhaustion should not be required because his client, like the plaintiff in Able, seeks to challenge a violation of his First Amendment rights. However, the Court has closely examined both the complaint and Major Brezler's declaration in support of the motion, and neither submission purports to assert a First Amendment retaliation claim. At most, it appears that plaintiff's theory is that the BOI proceedings were held in response to congressional inquiries into the deaths at FOB Delhi and media coverage of the incident. (See Brezler Decl. at ¶¶ 30, 45.) Plaintiff himself distills his case in the following way:
(Id. at ¶ 3.) A First Amendment retaliation claim would have to be based on some type of alleged speech by the plaintiff, and the complaint does not allege that the BOI proceeding was motivated by plaintiff's speech.
In sum, the Court lacks jurisdiction to enjoin the disciplinary proceedings. The BOI's recommendation is not a final agency action, and therefore plaintiff cannot seek review under the APA at this time. Moreover, with respect to any attempt to bring a due process claim outside the confines of the APA framework, plaintiff has adequate avenues for relief before administrative tribunals, which may obviate the need for federal judicial intervention. Such claims are, therefore, unexhausted and unripe. As a result, with respect to the due process claim, on the record before the Court, plaintiff has not shown a likelihood of success on the merits, or even sufficiently serious questions on the merits making them a fair ground for litigation.
With respect to any First Amendment retaliation claim (based upon plaintiff's communication with Congressman King or with anyone else), no such separate claim is contained in the complaint. Thus, the Court cannot address that claim unless and until plaintiff amends the complaint to include this cause of action, together with specific allegations regarding the nature of that claim. If such a claim is asserted, the Court will require additional briefing as to whether this claim should proceed, in light of the Able factors.
Accordingly, plaintiff's motion for a preliminary injunction is denied without prejudice.
SO ORDERED.
