Brezler v. Mills

• Decision Date: 06 December 2016
• Docket Number: No 14–CV–7424 (JFB),14–CV–7424 (JFB)
• Citation: 220 F.Supp.3d 303
• Parties: Jason BREZLER, Plaintiff, v. Lieutenant General Richard MILLS, United States Marine Corps, and United States Department of the Navy, Defendants.
• Court: U.S. District Court — Eastern District of New York

220 F.Supp.3d 303

Jason BREZLER, Plaintiff,

v.Lieutenant General Richard MILLS, United States Marine Corps, and United States Department of the Navy, Defendants.

No 14–CV–7424 (JFB)

United States District Court, E.D. New York.

Signed December 6, 2016

Plaintiff is represented by Michael J. Bowe, Kasowitz, Benson, Torres & Friedman LLP, 1633 Broadway, New York, NY 10019; and Kevin Thomas Carroll, Quinn Emanuel Urquhart & Sullivan LLP, 777 6th Street, Washington, DC 20001.

The government is represented Leigh Aaron Wasserstrom, Assistant United States Attorney, on behalf of Preet Bharara, United States Attorney, Southern District of New York, 86 Chambers Street, New York, NY 10007.

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

This lawsuit arises from a military Board of Inquiry ("BOI") 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 that BOI proceeding under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq ., and pursuant to 28 U.S.C. §§ 1331, 1361, and 2201.¹

Plaintiff's Second Amended Complaint (ECF No. 45) requests, inter alia , that the Court vacate the findings and recommendation of the BOI and permanently enjoin defendants from taking any adverse personnel action against plaintiff on the basis of the BOI proceeding, his August 30, 2013 referral to the same, or the purported facts underlying the BOI proceeding.

The government has moved to dismiss the complaint or, in the alternative, for summary judgment. Plaintiff has cross-moved for summary judgment. The government claims that dismissal or summary judgment in its favor is warranted on the following grounds: (1) plaintiff's claims are non-justiciable under the intramilitary immunity doctrine; (2) the exception to that doctrine covering challenges to mandatory regulations does not apply because plaintiff failed to exhaust his administrative remedies; (3) the evidence supports the BOI's findings and recommendation, as well as the subsequent endorsement of those findings and recommendation by military and civilian officials; and (4) the Navy abided by all applicable procedural rules.

In addition to arguing that the Navy failed to comply with several mandatory regulations governing the BOI process, plaintiff argues that the BOI itself was the product of unlawful retaliation stemming from a protected communication he made to U.S. Congressman Peter King.

For the reasons set forth herein, the Court denies the government's motion—except that it dismisses defendants Lieutenant General Mills and the United States Marine Corps from this action, see supra note 1—and grants plaintiff's motion to the extent that it finds that defendants failed to provide plaintiff with "[f]ull access to, and copies of, records relevant" to the BOI proceeding as required by Secretary of the Navy Instruction ("SECNAVINST") 1920.6C, Enclosure 8, ¶ 6(d) (2005). Accordingly, the Court vacates the BOI's findings and recommendation and remands to the Secretary of the Navy for further proceedings consistent with this Memorandum and Order, including providing plaintiff with documents that are relevant to his retaliation claims and with a new BOI proceeding during which he can fully and fairly explore those issues and complete the administrative record.

As a threshold matter, discussed in more detail below, the government correctly concedes that the intramilitary immunity doctrine does not bar judicial review under the APA as to whether the Navy failed to abide by its own mandatory regulations, which is the precise issue that the Court explores in the instant case. Moreover, based upon the plain language of the APA and clear Supreme Court jurisprudence construing the APA in Darby v. Cisneros , 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), this Court holds that plaintiff is not required to exhaust his administrative remedies by appealing the final agency decision dismissing him from the Marine Corps to the Board for Correction of Naval Records before seeking judicial review. Thus, this Court has jurisdiction under the APA to consider whether, as plaintiff contends, the Navy violated its own rules and regulations during the BOI proceeding that led to his dismissal. In addition, although both sides have submitted evidence to the Court outside the administrative record, because this is an APA review, the Court has relied upon only the administrative record in reaching its holding.

With respect to the merits, the Court concludes that the Navy violated its own discovery rule by failing to provide Major Brezler, prior to his BOI hearing or at any stage during the administrative review process, with all documents relevant to his retaliation claims. Those materials would have been critical to plaintiff's ability to fully and fairly explore whether, among other things, the Navy convened the BOI because of a protected communication he made to Congressman King (which was the subject of an August 25, 2013 story in the Marine Corps Times ).

For example, in arguing to this Court that there is no evidence of retaliation in the administrative record, the Navy relies heavily on an action memorandum to the Judge Advocate General of the Navy stating that the "legal review" of Major Brezler's case was completed before publication of the Marine Corps Times article, and that the BOI "package" was simply "held for Lieutenant General Mills to take action upon once he assumed the position of MARFORRES." (R. at 2579 n.7.)² However, that memorandum was not prepared until after Major Brezler's BOI hearing, and no such BOI "package" was produced to Major Brezler in discovery prior to that proceeding, or at any point during the subsequent administrative review. Similarly, there is no support for the Navy's conclusion that it did not have to disclose pre–BOI e-mails or other communications regarding Major Brezler because those materials were irrelevant. For example, if communications prior to the Marine Corps Times article indicate that the Navy did not contemplate a BOI, or indicate an affirmative decision not to initiate a BOI, such communications would be highly relevant to Major Brezler's claim that the BOI was retaliatory. To the extent that the government now contends that such documents are immaterial because they do not relate to the conduct that ostensibly led to the BOI and plaintiff's separation—namely, Major Brezler's mishandling of classified materials—the Court finds that argument unpersuasive based on its review of the administrative record, and inconsistent with the government's prior position in this litigation. Plaintiff raised claims of retaliatory motive and improper influence during the BOI proceeding and at each level of subsequent review, and the Navy clearly considered those claims at every stage of the administrative process. Indeed, the government has never argued in the instant action that plaintiff's retaliation arguments were irrelevant to the BOI, but rather has repeatedly asserted that the Navy carefully examined and rejected those claims throughout the administrative review.

In short, this Court finds that Major Brezler lacked the relevant documents necessary to fully and fairly litigate his retaliation claims, and that the Navy's failure to provide those materials violated its own discovery rule under the particular circumstances of this case. The Court emphasizes that, in reaching this holding, it has not concluded that the BOI was in fact retaliatory, or that the final agency action separating plaintiff from the Marine Corps was arbitrary and capricious. Instead, the Court holds that the Navy's regulatory infraction clearly prevented Major Brezler from fully and fairly litigating his retaliation claims during the administrative process, and potentially deprived decision-makers within the Marine Corps and the Department of the Navy of critical information relevant to their assessment of those claims, which they rejected based upon an incomplete record.

Finally, on the issue of remedy, the Court is cognizant of (and agrees with) the Supreme Court and Second Circuit's admonitions that federal courts avoid unreasonably interfering with the military mission by probing the subjective intent of military personnel decisions. However, as discussed below, both the Supreme Court and the Second Circuit have recognized that such deference is not limitless. In the instant case, given that the Court's conclusion is limited to the Navy's violation of its own discovery rule, and there is insufficient evidence that such failure was in bad faith, the Court declines Major Brezler's invitation to engage in an unwarranted intrusion into the Navy's administrative process by ordering district court discovery and conducting an evidentiary hearing regarding his retaliation claims. The Court further rejects plaintiff's request to permanently enjoin the Navy from taking any further disciplinary action based upon his misconduct.

Instead, it is clear to the Court that the proper remedy, under the particular circumstances of this case, is to remand this matter to the Department of the Navy so that Major Brezler may obtain relevant discovery on his retaliation claims as required by Navy regulations. The Navy must then provide Major Brezler with a new BOI hearing so that he may fully and fairly present relevant evidence on those issues. Of course, following remand, plaintiff could again contest any final agency decision before this Court pursuant to the APA.

I. BACKGROUND

A. REGULATORY FRAMEWORK

Because this lawsuit challenges the manner in which the Navy conducted Major Brezler's disciplinary proceeding, a brief discussion of the relevant administrative framework is necessary.

Applicable are three sections of the United...