Cunningham v. Loy, 3:98CV1047 (JBA).
| Citation | 76 F.Supp.2d 218 |
| Decision Date | 16 July 1999 |
| Docket Number | No. 3:98CV1047 (JBA).,3:98CV1047 (JBA). |
| Court | U.S. District Court — District of Connecticut |
| Parties | Patrick J. CUNNINGHAM, Jr. v. James M. LOY, Commandant, United States Coast Guard. |
Michael J. Calabro, Flanagan & Hunter, Boston, MA, John H. Grasso, Boatman, Boscarino, Grasso & Twachtman, Glastonbury, CT, for Patrick J. Cunningham, Jr., plaintiff.
Christine L. Sciarrino, U.S. Attorney's Office, New Haven, CT, for U.S. Coast Guard, James M. Loy Commandant, defendant.
RULING ON GOVERNMENT'S MOTION TO DISMISS COMPLAINT
[DOC. # 28]
Lieutenant Commander Patrick Cunningham, Jr. seeks a writ of mandamus compelling the Commandant to promote him to the rank of Commander, correct his official military record, and preclude the Commandant from discharging him from the Coast Guard for failing to be promoted. The United States Coast Guard Commandant moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.
The Commandant contends that this Court lacks subject matter jurisdiction to entertain Cunningham's action due to his failure to exhaust the administrative remedies available within the Coast Guard and/or the lack of finality of the Coast Guard's decision. Cunningham opposes dismissal on the grounds that exhaustion is not a requirement of any statute, regulation, or agency rule, relying on the Supreme Court's decision in Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) which establishes that plaintiffs cannot be required to exhaust administrative remedies before seeking federal court review under the Administrative Procedures Act, 5 U.S.C. § 701 et seq., ("APA"), absent any statute or agency rule requiring such exhaustion.
Lieutenant Commander Cunningham contends that the Commandant has failed to promote him to the rank of Commander in violation of a Decision and Order of the Department of Transportation Board of Corrections of Military Records, also known as the Board of Correction of Military Records of the Coast Guard, ("CGBCMR"), approved by the Deputy General Counsel of the Department of Transportation on November 8, 1995 ("CGBCMR Order"). The CGBCMR provided that:
The applicant shall be given the opportunity to be considered by the next two CDR Selection Boards. If selected by the first such Board, he shall be given the date of rank he would have received had he been selected in 1993, and shall be given applicable back pay and allowances.
In short, Cunningham contends that once he was placed on the selected list for the Promotion Year 1997 in August 1996, and confirmed by the Senate in January 31, 1997, he was entitled to the retroactive date of rank as if he had been selected in 1993, and therefore was entitled to be promoted when the first vacancy occurred immediately after February 1, 1997. Am. Compl. at ¶ 23, 28. According to Cunningham, the CGBCMR Order did not require any discretionary acts by the Commandant but "required the ministerial act of promoting the plaintiff to the rank of Commander." Am. Compl. at ¶ 41, 42.
The Amended Complaint seeks the extraordinary writ of mandamus "to compel his promotion and injunctive relief to prevent further action by the USCG to delay his promotion, to permanently remove his name from the Commander Promotion List, or to terminate his active duty status, prior to his promotion, in violation of federal law, its own regulations, and the Decision and Order of the CGBCMR" and as a result "correcting his official Military Record." Am. Compl. at 13. As pled, Cunningham requests four distinct types of relief, namely that the Court: 1) restore his name to the Promotion Board; 2) compel his promotion to Commander without further delay; 3) prohibit the Commandant from discharging him from the Coast Guard; and 4) correct his official military record in conformance with the Order. The Court's jurisdiction in an action requesting mandamus is discretionary, Franchi v. Manbeck, 972 F.2d 1283 (1992), and is available only where the defendant owes the plaintiff a clear, ministerial and nondiscretionary legal duty.
On June 26, 1998, this Court denied Cunningham's motion for preliminary injunctive relief noting that the parties disputed whether Cunningham had exhausted his administrative remedies before filing this action. Cunningham v. Loy, 24 F.Supp.2d 236 (D.Conn.1998). Subsequently, Cunningham filed two separate applications for correction of his military record which were docketed by the CGBCMR on July 17, 1998 and September 17, 1998 respectively. See Application Doc. No. 1998-094 & 1998-116 (Gov. Reply at Ex. 1 and 2). To date, the CGBCMR has not issued any decision on either of Cunningham's pending applications.
The Government contends that the Court lacks subject matter jurisdiction over Cunningham's claim given his failure to exhaust his available administrative remedies under the military scheme. It is well established that "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." Guitard v. U.S. Secretary of the Navy, 967 F.2d 737, 739 (2d Cir.1992). Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51 (2d Cir.1994). This policy is particularly important when a court considers military matters. Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975).
As evidenced by the two administrative appeals he has filed subsequent to commencing this action on which final decision by the CGBCMR is still pending,1 Cunningham did not exhaust his administrative remedies of appeal to the Board of Correction of Military Records as provided under 10 U.S.C. § 1552 before commencing this action.
In opposition, Cunningham claims that exhaustion of administrative remedies is not required under the reasoning of Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), precluding imposition of additional exhaustion requirements in actions seeking review of agency action under the APA. While Cunningham correctly notes that several courts have extended the rationale of Darby v. Cisneros to actions seeking review of military personnel actions under the APA, these APA cases are distinguishable from this action only seeking a writ of mandamus. See St. Clair v. Secretary of Navy, 970 F.Supp. 645 (D.Ill.1997) (); Perez v. United States, 850 F.Supp. 1354 (N.D.Ill.1994) (same). But see Saad v. Dalton, 846 F.Supp. 889 (S.D.Cal.1994) (...
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