UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

I. TABLE OF CONTENTS

I. TABLE OF CONTENTS

II. TABLE OF AUTHORITIES

III. MEMORANDUM OF POINTS AND AUTHORITIES

A. INTRODUCTION

B. STATEMENT OF FACTS & PROCEDURAL HISTORY

C. ARGUMENT

a) DEFENDANT’S MOTION TO DISMISS SHOULD BE DENIED

b) Plaintiff’s Claims are Justiciable under APA

c) Plaintiff Challenged the May 2020 PRB and disenrollment are Ripe

d) The 2016 BCNR application claims are valid.

e) Filing of suit timing and other arguments against defense’s motions

D. CONCLUSION

II. TABLE OF AUTHORITIES

Cases Pages

Bradley v. Spencer, Case No. 3:17-cv-495(RNC) (D. Conn. Apr. 11, 2019) 7

Chappell v. Wallace, 462 U.S. 296, 303-04 (1983) 6

Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) 6, 7, 10

Darby v. Cisneros, 509 U.S. 137 (1993) 8, 9

Dickson v. Sec’y of Def., 68 F.3d 1396, 1400 (1995) 6

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3rd Cir.2009) 5

Frizelle v. Slater, 111 F.3d 172, 176 (1997) 6, 7, 10

Gilligan v. Morgan, 413 U.S. 1, 10 (1973) 6

Johnson v. Securities and Exchange Comm’n, 87 F.3d 484 (D.C. Cir. 1996) 12

Kidwell v. Dep’t of the Army, 56 F.3d 279, 286 (1995) 6

Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511 (1989) 6

Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) 7, 8

Langford v. City of Atlantic City, 235 F.3d 845, 847 (3rd Cir.2000) 5

Musengo v. White, 286 F.3d 535, 538 (2002) 6

Pettiford v. Secretary of Navy, 774 F. Supp. 2d 173 (D.D.C. 2011) 10

Seifert v. Winter, Civil Action No. 06-2219 (RBW) (D.D.C. Apr. 3, 2008) 10

Smith v. Secretary of Army, 384 F.3d 1288 (Fed. Cir. 2004) 12

Turner v. Dep’t of Navy, 325 F.3d 310, 313-14 (2003) 6

Wilhelm v. Caldera, 90 F. Supp. 2d 3 , 7 9

Statutes, Rules and Regulations Pages

5 U.S. Code § 706 6, 7

5 U.S.C. § 706(2)(A) 7

5 U.S.C. § 704 (1988) 8

28 U.S.C. § 1331 6

28 U.S.C. § 1491(a)(2) 12

III. MEMORANDUM OF POINTS AND AUTHORITIES

A. INTRODUCTION

The defendant has stated “the procedural history in this Administrative Procedure Act (APA) case is convoluted, the facts are straightforward”, although this is generally true when it comes to APA matters related to the military and courts, it has been very straightforward when the military has failed to follow procedures or regulations. The Navy chooses to selectively look at history or has lost significant portions of the evidence as it relates to the suit at hand. The Navy incorrectly claims plaintiff did not appeal the disciplinary actions, even if this were correct defendant has yet to explain it’s consistent failure of following regulations and laws and the how ultimately impacted plaintiff’s trajectory.

 The memorandum below counters arguments made by defense and illustrate the court not only

has jurisdiction but is the appropriate venue to handle such matters. Furthermore, the memorandum established the (1) plaintiff’s claims are justiciable under APA, (2) plaintiff challenged the May 2020 Performance Review Board (PRB), and (3) the disenrollment claim is ripe. The 2016 Board of Corrections for Naval Records application claims are valid. Defendant’s motion to dismiss should be denied and the case allowed to proceed.

B. STATEMENT OF FACTS & PROCEDURAL HISTORY 

 In December 2013, Plaintiff having met all requirements for commission and being designated by the Navy to commission on December 21, 2013, took the oath of office along with 15 others from Brigadier General Bierman at NROTC San Diego. At that time there were no extenuating reasons to delay Plaintiff’s commission nor was there any compliance with any regulation to do so.

Shortly after plaintiff’s commissioning paperwork was improperly withheld and in January 2014, disciplinary actions ensued resulting in a disenrollment.

In May 2014 plaintiff appealed the disenrollment to Navy Service Training Command (NSTC) via Admiral’s Mast which did not occur until July 2014 until after I had been transferred to USS Bainbridge in Norfolk, Virginia (ex. XX). NSTC’s commander at the time said there was nothing he could do and did not investigate any claims brought forward. This inaction led to a set aside request and ultimately to the first of several BCNR submission (BCNR 12481-14 and 850-16). In July 2019 the BCNR eventually granted partial relief on a procedural issue with the disenrollment (BCNR 3923-18), ordering NSTC to convene a new PRB. Plaintiff had to wait until May 2020 for proceeding to begin and raise numerous objections to the process (ex. XX). The lack of response to claims and apparent mishandling of the disenrollment is what plaintiff to having to file in district court for review of agency actions.

C. ARGUMENT

a) DEFENDANT’S MOTION TO DISMISS SHOULD BE DENIED

1. Defendant seeks dismissal of Plaintiffs’ Fourth Amendment challenge to the record keeping statutes under Rule 12 (b)(1) of the Federal Rules of Civil Procedure, alleging that the court lacks subject matter jurisdiction over the APA is not ripe for review. Defendant seeks dismissal of the remainder of Plaintiffs’ constitutional challenges to the statute sunder Rule 12 (b)(6) of the Federal Rules of Civil Procedure on the ground that Plaintiffs’ Complaint fails to state a claim upon which relief can be granted. The Motion to Dismiss should be denied on both grounds.
2. Plaintiffs will address why Defendant is wrong that, as a matter of law, their APA challenges should be dismissed– including Defendant’s challenge on ripeness grounds–in the discussion of the merits in the pages that follow.  But, here at the outset, Plaintiff explain why, as a matter of pure application of the standard of review for dismissal of claims under Rule 12 (b), Defendant’s motion should be denied.
3. In reviewing a motion to dismiss, all factual allegations must be accepted as true, and the complaint must be construed in Plaintiffs’ favor to determine whether, under any reasonable reading of the Complaint, Plaintiffs may be entitled to relief.  Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co., 579 F.3d 304, 307 (3rd Cir. 2009).  Defendant’s motion to dismiss Plaintiff’s Complaint under Rule 12 (b)(6) must be denied if the Complaint contains sufficient factual matter to state a claim that is plausible on its face. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3rd Cir.2009) (quotation and citing omitted). In assessing a motion to dismiss in terms of a Complaint that alleges the deprivation of constitutional rights, a court should not “inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims.” Langford v. City of Atlantic City, 235 F.3d 845, 847 (3rd Cir.2000) (quotation and citation omitted). Thus, if a complaint alleges sufficient facts giving rise to a plausible claim for the deprivation of constitutional rights, the motion must be denied, and Plaintiffs must be given the opportunity to offer evidence in support of their claims.

b) Plaintiff’s Claims are Justiciable under APA 

• The Courts 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 the Courts have followed the lead of the Supreme Court. See Kreis, 866 F.2d at 1512, in which Courts have relied upon Chappell v. Wallace, 462 U.S. 296, 303-04 (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 it is acknowledged the “fundamental and highly salutary principle” that “judges are not given the task of running the [military].” 866 F.2d at 1511 (quotation and citation omitted); see also Gilligan v. Morgan, 413 U.S. 1, 10 (1973). In light of that principle, courts have held justiciable a serviceman’s 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 “adjudication of claims requires the district court to determine only whether the Secretary’s decision-making process was deficient, not whether his decision was correct.” Id.
• Plaintiff’s Claims are Justiciable, the plaintiff is not asking the court to entertain a military personnel matter by deciding for the navy, but rather under 5 U.S. Code § 706 and 28 U.S.C. Section 1331 have the court determine based on all evidence that the navy failed to meet its obligations or follow its own regulations. The record will reflect the Navy’s blatant disregard for regulations and the numerous failures to address deficiencies when informed of them. 5 U.S. Code § 706 allows for the court to set aside and remand to the Navy with instruction to comply with the own regulations, well within the jurisdiction of the courts. A remand in plaintiff’s favor requiring Navy to correctly apply and follow their own regulations would ultimately result in the commission being granted and other prayers requested by plaintiff. Bradley v. Spencer, Case No. 3:17-cv-495(RNC) (D. Conn. Apr. 11, 2019)
• As the Court previously noted, the plaintiff seeks relief from the NJP and PRB determinations pursuant to the APA. Under this statute, the Court must uphold the NJP and PRB decisions unless they were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Thus, in order to reverse a determination under the APA, a reviewing court must be unable “to conclude that the [authority whose action is under review] examined the relevant data and articulated a satisfactory explanation for its action [,] including a rational connection between the facts found and the choice made.” Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) (internal quotation and citation omitted). The “explanation need not be a model of analytic precision to survive a challenge” under the APA; rather, “[a] reviewing court will uphold a decision of less than ideal clarity if the authority’s path may reasonably be discerned.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (internal quotation and citation omitted).
• As a general matter, courts employ “an unusually deferential application of the ‘arbitrary and capricious’ standard of the [APA]” where the authority at issue is a part of the military. Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). “This deferential standard is calculated to ensure that courts do not become a forum for appeals by every soldier dissatisfied with [an agency’s action], a result that would destabilize military command and take the judiciary far afield of its area of competence.” Id. However, this exaggerated degree of deference is unnecessary if “the issue before the court does not involve a military judgment requiring military expertise.” Kreis, 406 F.3d at 686.
• Taking into consideration the procedures and practices implemented to arrive at NJP and PRB decisions, it is the Plaintiff’s belief that due process was not properly executed to arrive at a fair and just determination.
• The Plaintiff took all necessary steps to satisfy a valid argument with respect to the NJP and PRB allegations against him. Plaintiff justified his position with valid evidence to demonstrate his compliance with rules and regulations while enrolled in STA-21. Nonetheless, the Defendant failed to (1) take into consideration the evidence tabled by the Plaintiff; (2) to investigate and validate the evidence tabled by the Plaintiff; and (3) failed to carry out due process prior to deciding to disenroll the Plaintiff.
• Therefore, the Plaintiff’s claim is justiciable and the Defendant’s motion to dismiss should be dismissed forthright to proceed with the hearing of the Complaint.

c) Plaintiff Challenged the May 2020 PRB and disenrollment are Ripe

1. The defendant argues that this Court lacks jurisdiction to set aside the NJP and the PRB because the Plaintiff did not present the issues concerning these items to administrative appeal. As noted, the plaintiff brings this action under the APA. The APA grants this Court jurisdiction to review final agency actions. 5 U.S.C. § 704 (1988). However, the Supreme Court has interpreted this to mean that “an appeal to ‘superior agency authority’ is a prerequisite to judicial review [of an agency decision] 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.” Darby v. Cisneros, 509 U.S. 137, 154 (1993). Darby has subsequently been applied in the military context. Wilhelm v. Caldera, 90 F. Supp. 2d 3, 7. In Wilhelm, the plaintiff sought to expunge certain documents from his United States Army personnel file. Although the plaintiff could have sought review from thec Army Board for the Correction of Military Records, the court ruled that under Darby it had jurisdiction to entertain the plaintiff’s case, even though agency review had not been pursued, as there was no law or regulation “expressly” requiring review by the Board.
2. This argument that the complaint is not ripe is incorrect. As per Darby, Plaintiff is not required to exhaust his administrative remedies before seeking judicial review when exhaustion of remedies is not required by either administrative rules or statute.
3. Additionally, per the NSTCINST M-1533.2D APPENDIX G, final adjudication and the final decision are made by NSTC delegated by the Secretary of the Navy, with the student appeal immediately following the PRB. Additionally, pursuant to article 1150, Id., complaints of wrongdoing by a superior officer was filed with Navy Education Training Command (NETC) about the issues within NSTCs handling of the second disenrollment. The complaint included the topics that were appealed but never addressed and the statutes of limitation issue. This provided the Navy with an additional opportunity to reevaluate its position, which it chose not to. Because the Navy has established this chain of appeals and final decision as policy, the exhaustion of administrative remedies has been met as there is no requirement to bring this claim to the BCNR.
4. As such, this court has jurisdiction to hear and determine Plaintiff’s Complaint.

d) The 2016 BCNR application claims are valid.

1. Plaintiff is challenging the lack of response to arguments made in the BCNR 850-16 decision (ex. XX), although it was requested by council to be removed from consideration the application was still adjudicated and was not until council followed up in 2017 that the error was discovered. The BCNR has not rescinded or invalidated the BCNR 850-16 as such it is still subject to challenge in court. The courts have previously weighed in on the BCNRs decision before setting aside BCNR’s determinations because of regulatory violation and remanding Seifert v. Winter, Civil Action No. 06-2219 (RBW) (D.D.C. Apr. 3, 2008). Additionally, the court has remanded to BCNR where failure to address a non-frivolous argument that could affect the BCNR’s ultimate disposition of a claim rendered BCNR’s decision arbitrary; Pettiford v. Secretary of Navy, 774 F. Supp. 2d 173 (D.D.C. 2011).
2. Components of the military are afforded a higher level of deference than civilian administrative agencies. Calloway v. Brownlee, 366 F. Supp. 2d 43, 53 (D.D.C. 2005) (quotation and citation removed). This higher level of deference “is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Thus, a military board’s decision will be sustained if it “minimally contain[s] a rational connection between the facts found and the choice made.” Frizelle v. Slater, 111 F.3d 172, 176-77 (D.C. Cir. 1997) (internal quotation marks and citations omitted).
3. Noting the discrepancies raised in the Plaintiff’s Complaint with regard to failure to administrate due process, the Complaint qualifies to be heard and determined on the fairness of the decision-making process.

e) Filing of suit timing and other arguments against defense’s motions

1. Plaintiff does not challenge the 2014 Performance Review Board; the 2014 disenrollment was essentially invalidated as a PRB is required to disenroll (see NSTC M-1533.2C, 6-17). A new disenrollment convened Spring of 2020. The reference was to highlight the date of disenrollment had changed to 2021 and was now what was to be challenged and to illustrate the pattern of the Navy’s failure to follow numerous regulations and lengthy delays plaintiff was subjected to by the Navy.
2. This suit was filed due to NSTC’s failure to properly communicate with plaintiff about why required timelines for the prompt handling were not followed as required by regulation, along with the disregard of non-frivolous claims and appeals made throughout the 2020 disenrollment proceedings. It took navy over 12 months to decide on disenrollment on what was by instruction to take 60 days.
3. In response to identifying a proper statute that would invoke jurisdiction over monetary claims. Defendant is correct, and Plaintiff’s oversight did not provide the proper statute to allow a monetary claim. Plaintiff submits the Military Pay Act; 28 U.S.C. § 1491(a)(2) as the statute to do so, and would trigger the Tucker Act. Plaintiff has not determined the amount of back pay due to the complexity of the issues. Where appropriate, the court may accompany an award of monetary relief with an order “directing restoration to office or position, placement in appropriate duty or retirement status, [or] correction of applicable records (28 U.S.C. § 1491(a)(2)). The Military Pay Act “with two exceptions, cannot be used to obtain the salary of a higher rank for which the claimant was not selected. Instead, “a service member is entitled only to the salary of the rank to which he [or she] is appointed and in which he [or she] serves.” The two exceptions occur when: (1) the plaintiff “has satisfied all the legal requirements for promotion, but the military has refused to recognize his [or her] status,” or (2) “the decision not to promote the service member leads to the service ember’s compelled discharge.” Smith, 384 F.3d at 1294-95 (citing Dysart v. United States, 369 F.3d 1303, 1315-16 (Fed. Cir. 2004); Law v. United States, 11 F.3d 1061, 1065 (Fed. Cir. 1993.)
4. Other arguments related to the 2020 PRB and disenrollment are both due process and statute of limitation issues, these arise as 1) plaintiff’s due process was violated as plaintiff was not provided all evidence considered by the May 2020 PRB (d XX), 2) A decision based exclusively on the evidence presented did not occur as the PRB referenced external information than what was provided in the evidence (ex. XX). 3) the PRB and disenrollment should be invalidated as they happened outside of 28 U.S. Code § 2462’s 5-year statute of limitations; ; Johnson v. Securities and Exchange Comm’n, 87 F.3d 484 (D.C. Cir. 1996). These actions directly contributed to the continued delay and denial of my commission and entitlements that were granted and were to take place beginning December 21, 2013.

D. CONCLUSION

For the foregoing reasons, this Court should dismiss the Defendant’s motion to dismiss, and allow hearing and determination of the Plaintiff’s complaint on its merit.

Dated:  ____________________

Respectfully submitted,

By:__________________________

Antonio Adams

421 S. Van Ness. Ave. APT 30

Los Angeles, CA 90020

(619) 204-7884

Antonio.r.adams@outlook.com

Pro Se Litigant

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