Wollman v. Geren

• Decision Date: 17 March 2009
• Docket Number: No. 1:08cv1130 (JCC).,1:08cv1130 (JCC).
• Citation: 603 F.Supp.2d 879
• Parties: James WOLLMAN, Plaintiff, v. Pete GEREN, in his Capacity as Secretary of the Army, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

603 F.Supp.2d 879

James WOLLMAN, Plaintiff, v. Pete GEREN, in his Capacity as Secretary of the Army, Defendant.

No. 1:08cv1130 (JCC).

United States District Court, E.D. Virginia, Alexandria Division.

March 17, 2009.

Maureen Elizabeth Carr, Rees Broome & Diaz PC, Vienna, VA, for Plaintiff.

Dan Edward Stigall, Kevin J. Mikolashek, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter comes before the Court on a motion to dismiss the Amended Complaint by Defendant Pete Geren, sued in his official capacity as Secretary of the Army ("Defendant"). For the reasons stated below, the Court will grant Defendant's motion to dismiss.

I. Background

Plaintiff James Wollman ("Plaintiff"), an Army officer who was discharged without pay because of a physical disability that the Army determined was "Existing Prior to Service," brought this suit to seek review of the Army's decision that its Discharge Review Board lacks authority to review Plaintiff's discharge. The allegations in the Amended Complaint are as follows.¹

Around October 2005, a Physical Evaluation Board found that Plaintiff's physical disability—the reason for his discharge— was "Existing Prior to Service." Am. Compl. at ¶ 8. As a result of this finding, Plaintiff's discharge was classified as "without pay." Id. Following the Physical Evaluation Board's ruling, Plaintiff embarked on an administratively complex attempt to overturn the "without pay" status of his discharge. He sought review by a number of administrative bodies within the Army and, ultimately, by this Court.

In November 2005, the United States Army Physical Disability Agency affirmed the findings of the Physical Evaluation Board. Id. at ¶ 9. From there, Plaintiff filed a petition with the Army Disability Review Board (the "Disability Review Board") pursuant to 10 U.S.C. § 1554. He asked for a medical retirement from the Army, a finding that there had been a service-related aggravation of his condition, and a finding that his disabling condition was service-related, rather than "Existing Prior to Service." Id. at ¶ 10. The Disability Review Board denied all three requests and affirmed the findings of the Physical Evaluation Board and the Physical Disability Agency. The Disability Review Board did not—and was not required to—discuss the legal basis for its decision. Id. at ¶ 17.

After this third rejection, Plaintiff asked the Army Review Boards Agency, which has jurisdiction over all of the Army's review boards, whether the Army Discharge Review Board (the "Discharge Review Board") would be able to review his case and change his discharge status to a discharge with pay, pursuant to 10 U.S.C. § 1553. Id. at ¶¶ 12, 15. Under Department of Defense Instructions ("DoDI") § 1332.28 E3.5.1, decisions by the Discharge Review Board must discuss the reasons for the Board's finding. Id. at ¶ 16.

A Legal Advisor to the Army Review Boards Agency told Plaintiff, via e-mail, that the role of the Discharge Review Board historically "does not include changing a non-medical retirement discharge to a medical retirement discharge when an honorable characterization of service was issued with that discharge." Id. at ¶ 19. The Legal Advisor noted, however, that Plaintiff could still appeal to the Discharge Review Board if he wanted to do so. Approximately two weeks later—on April 17, 2007—Plaintiff appealed to the Discharge Review Board.

In October 2007, the Director of the Discharge Review Board sent Plaintiff a letter on Army Review Boards Agency stationery. The letter disapproved Plaintiff's request to have the Discharge Review Board review his case. It stated that the Army Review Boards Agency and the Office of the Secretary of Defense had determined that the Discharge Review Board did not have the authority to grant medical discharges. The letter explained that Plaintiff could seek review by the Army Board for Correction of Military Records (the "ABCMR"), which does have "`clear statutory authority to review applications seeking correction of military records, to change discharge status to reflect medical separations, and to authorize disability retirement entitlements.'" Id. at ¶ 22 (quoting the letter); see 10 U.S.C. § 1552.

Rather than seek review with the ABCMR, Plaintiff filed this suit. He states three claims for relief, all brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the Declaratory Judgment Act, 28 U.S.C. § 2201.² First, Plaintiff seeks review of his discharge and a change to "discharge with pay" status by the Discharge Review Board, pursuant to what he claims is its statutory authority under 10 U.S.C. § 1553. As part of this request, Plaintiff asks for a ruling that the Army Review Boards Agency and the Discharge Review Board improperly determined that the Discharge Review Board lacks authority to review his discharge. Id. at ¶¶ 23-30. Plaintiff suggests that an "actual controversy" exists as to whether the requirements of 10 U.S.C. § 1222(a), which requires military review boards dealing with certain physical disability cases to convey their findings, conclusions, and reasoning, would apply to an appeal taken by Plaintiff to the ABCMR. Id. at ¶¶ 32-41. He asks the Court to declare that he is entitled to findings and conclusions on any decision made by the Discharge Review Board or the ABCMR. Id. at 9. Finally, pursuant to 10 U.S.C. § 1556, Plaintiff requests a copy of any correspondence and communications having to do with the contested decision that the Discharge Review Board could not hear his case. Id. at ¶¶ 42-48.³ All of Plaintiff's claims depend on the availability of federal court review under the APA.

Defendant moved the Court to dismiss the Amended Complaint on January 16, 2009. Plaintiff opposed the motion on February 4, and Defendant submitted a reply brief on February 12. This motion is before the Court.

II. Standard of Review

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint, see Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994) (citation omitted). In deciding a motion to dismiss, "the material allegations of the complaint are taken as admitted." Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (citation omitted). Moreover, "the complaint is to be liberally construed in favor of plaintiff." Id. A motion to dismiss must be assessed in light of Rule 8's liberal pleading standards, which require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8. While Rule 8 does not require "detailed factual allegations," a plaintiff must still provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citation omitted).

Pursuant to Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Defendants may attack subject matter jurisdiction in one of two ways. First, defendants may contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); King v. Riverside Reg'l Med. Ctr., 211 F.Supp.2d 779, 780-81 (E.D.Va.2002). In such instances, all facts alleged in the complaint are presumed to be true. Adams, 697 F.2d at 1219; Virginia v. United States, 926 F.Supp. 537, 540 (E.D.Va.1995). Alternatively, defendants may argue that the jurisdictional facts alleged in the complaint are untrue. Adams, 697 F.2d at 1219; King, 211 F.Supp.2d at 781. In that situation, "the Court may `look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Virginia v. United States, 926 F.Supp. at 540 (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993)); see also Adams, 697 F.2d at 1219; Ocean Breeze Festival Park, Inc. v. Reich, 853 F.Supp. 906, 911 (E.D.Va.1994). In either case, the burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Adams, 697 F.2d at 1219.

III. Analysis

Defendant argues that the case against him must be dismissed for two reasons: first, Plaintiff does not ask for review of a final agency action, and second, Plaintiff has not exhausted his administrative remedies. Plaintiff claims that the action he complains of is a final decision by the Army and that, under Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), he is not required to appeal to the ABCMR before bringing his case to federal court.

The Court agrees with Defendant that Plaintiff brought his case to federal court prematurely. Taking jurisdiction over this matter and deciding the issues raised by Plaintiff would thrust the Court into the middle of the administrative review system set up by the Army to adjudicate the discharge status of former service-members. The jurisdictional decision Plaintiff complains of did not close off all avenues of review. Instead, it simply directed him to appeal to a different administrative review board. Further review by the Army may end with a decision in Plaintiff's favor on the merits of his appeal.

The Court finds that action by the judiciary at this interlocutory stage would be premature. The decision Plaintiff complains of is not the kind of "final decision" subject to immediate review in the federal court.⁴ Because the Court finds that the case should be dismissed on finality grounds, it will not consider Defendant's exhaustion argument at this time.

A. Final Agency Action

The Administrative Procedure Act (the "APA") allows "[a] person suffering legal wrong because of agency action" to seek judicial...