Piersall v. Winter

• Decision Date: 27 January 2006
• Docket Number: No. 04-5382.,04-5382.
• Citation: 435 F.3d 319
• Parties: Charles H. PIERSALL, III Appellant v. Donald C. WINTER, Secretary of the Navy, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

435 F.3d 319

Charles H. PIERSALL, III Appellant v. Donald C. WINTER, Secretary of the Navy, Appellee.

No. 04-5382.

United States Court of Appeals, District of Columbia Circuit.

Argued November 17, 2005.

Decided January 27, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03cv01770).

Eugene R. Fidell argued the cause for appellant. With him on the briefs were Matthew S. Freedus and Charlotte E. Cluverius.

Barton F. Stichman, Arnon D. Siegel, and Michael C. Higgins were on the brief of amicus curiae The National Veterans Legal Services Program in support of appellant.

Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and D. Jacques Smith, Commander, Office of the Judge Advocate General. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and GARLAND and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

Charles Piersall, a Commander in the United States Navy, challenges the decision of the Board for Correction of Naval Records (hereinafter Board or BCNR) not to reverse the effects of his non-judicial punishment.^* The district court, relying upon our decision in Brannum v. Lake, 311 F.3d 1127 (2002), dismissed the case for lack of subject matter jurisdiction. We reverse the order of the district court and remand the matter for that court to review the decision of the Board pursuant to § 706 of the Administrative Procedure Act (APA), 5 U.S.C. § 706.

I. Background

On February 11, 1998 then-Lieutenant Commander Piersall was the Executive Officer and Command Duty Officer of the USS La Jolla, a nuclear submarine, when it collided with and sank a Korean fishing vessel off the coast of Chinhae, Republic of Korea. After rescuing the crew of the fishing vessel, the La Jolla proceeded to the Chinhae naval base. On February 19 the commander of Submarine Group 7, Rear Admiral Albert H. Konetzni, Jr., initiated a proceeding — known in the Navy as a "mast" — to determine whether to impose non-judicial punishment upon any member of the crew of the La Jolla, which under Article 15 of the Uniform Code of Military Justice a commanding officer may do "for minor offenses without the intervention of a court-martial." 10 U.S.C. § 815(b). Admiral Konetzni found Piersall had been derelict in his duties as the second in command of the La Jolla because he negligently failed to prevent the collision with the fishing vessel. As punishment, he directed that a letter of reprimand be made part of Piersall's service record. Piersall unsuccessfully appealed the punishment to the next superior authority, as permitted under 10 U.S.C. § 815(e), and then sought relief from the Board for Correction of Naval Records.

Under 10 U.S.C. § 1552(a), the Secretary of a military department (Army, Navy, or Air Force) may act "through boards of civilians" to "correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." Piersall petitioned the Board to reverse the effects of his non-judicial punishment by expunging from his record both the mast and the letter of reprimand on the ground that the mast was invalid because he had not been afforded an opportunity to refuse non-judicial punishment. A member of the Navy may refuse non-judicial punishment and demand trial by a court martial unless he is "attached to or embarked in a vessel." 10 U.S.C. § 815(a). Piersall argued he was neither attached to nor embarked in the La Jolla at the time of the mast, which was conducted in a building on the Chinhae naval base approximately two miles from the shipyard where the La Jolla was docked.

The Board concluded (1) the site of the mast was "in sufficiently close proximity to [the] La Jolla to be deemed in the ship's immediate vicinity"; (2) Piersall "should be viewed as being in the process of boarding" the vessel at the time of the mast because he returned to the ship after the mast and "would have returned as [Executive Officer] but for the guilty finding"; and (3) therefore he was "attached to" the La Jolla and had no right to refuse non-judicial punishment. The Board also noted that Piersall could not have refused non-judicial punishment had Admiral Konetzni elected to conduct the hearing on board the La Jolla rather than ashore. The decision of the Board to deny relief was approved by an Assistant General Counsel of the Navy on behalf of the Secretary of the Navy.

Piersall then brought this suit in district court claiming the Board's decision not to reverse the effects of his non-judicial punishment was arbitrary and capricious, unsupported by substantial evidence, and contrary to law because he was not "attached to" the La Jolla at the time of his mast and he should have been afforded an opportunity to demand trial by a court martial. He sought (1) vacatur of the Board's decision; (2) expungement from his record of the mast and of the letter of reprimand; and (3) costs and attorneys' fees.

The Secretary filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim, arguing Piersall lost any right he might have had when he failed to request trial by a court martial prior to the mast. The Secretary also argued the complaint should be dismissed for lack of subject matter jurisdiction because the district court lacks jurisdiction to review the decision of the Board. Piersall opposed the Secretary's motion to dismiss and moved for summary judgment.

The district court granted the Secretary's motion to dismiss for lack of subject matter jurisdiction. Citing our decision in Brannum, 311 F.3d 1127, the district court concluded that because Piersall's claim did not involve a challenge to military jurisdiction, his claim was barred by the non-justiciability doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

II. Analysis

On appeal Piersall argues the district court erroneously dismissed his case for lack of jurisdiction and urges us to reach the merits of his challenge to the Board's decision. We review de novo the district court's grant of a motion to dismiss for lack of subject matter jurisdiction. See Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1085 (1998). We begin with jurisdiction and conclude that Piersall's claims are justiciable, but we do not reach the merits of his claims.

A. Jurisdiction

These are not uncharted waters. We have many times reviewed the decisions of boards for correction of military records "in light of familiar principles of administrative law." See, e.g., Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (1989); see also Turner v. Dep't of Navy, 325 F.3d 310, 313-14 (2003); Musengo v. White, 286 F.3d 535, 538 (2002); Cone v. Caldera, 223 F.3d 789, 793 (2000); Frizelle v. Slater, 111 F.3d 172, 176 (1997); Dickson v. Sec'y of Def., 68 F.3d 1396, 1400 (1995); Kidwell v. Dep't of the Army, 56 F.3d 279, 286 (1995). In doing so we were following the lead of the Supreme Court. See Kreis, 866 F.2d at 1512, in which we relied upon Chappell v. Wallace, 462 U.S. 296, 303-04, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (indicating decisions of the BCNR are "subject to judicial review and can be set aside if they are arbitrary, capricious, or not based on substantial evidence").

In Kreis we also acknowledged the "fundamental and highly salutary principle" that "[j]udges are not given the task of running the [military]." 866 F.2d at 1511 (quoting Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 97 L.Ed. 842 (1953)); see also Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). In light of that principle, we held nonjusticiable a serviceman's claim for retroactive promotion. We held justiciable, however, the serviceman's "more modest request" to review "the reasonableness" of the decision of a military board of correction pursuant to the standards of the APA. Kreis, 866 F.2d at 1511. Review of that decision would not interfere unduly with military matters because "[a]djudication of [such] claims requires the district court to determine only whether the Secretary's decision making process was deficient, not whether his decision was correct." Id. In other words, such review

would not require the district court to substitute its judgment for that of the Secretary .... The court would only require the Secretary, on remand, to explain more fully the reasoning behind his decision and, with respect to his denial of a retroactive promotion, to apply the appropriate legal standard.

Id. at 1512.

Contrary to the Secretary's understanding of Brannum, 311 F.3d 1127, nothing in that case overruled, or limited the scope of review to be applied in, the Kreis line of cases. Brannum, a reservist in the Air Force, was subjected to non-judicial punishment and demotion for having been absent without leave. Id. at 1128. He filed suit making claims of malicious prosecution, defamation, and discrimination, among others, against various officers and civilian employees of the Air Force. Id. at 1128-29. He also sought to vacate his non-judicial punishment on the ground the Air Force did not have jurisdiction to impose it because, as an Individual Mobilization Augmentee in the Air Force Reserves, he was not a "member of a reserve component" within the meaning of 10 U.S.C. § 802(d) and therefore could not be recalled to active service in order to face non-judicial punishment. Brannum, 311 F.3d at 1128-29. He did not petition for relief from a military board of correction. The district court dismissed all Brannum's claims on the basis of the Supreme Court's decision in Feres that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries...