Piersall, Charles v. Winter, Donald C. (2006)

STANDARD OF REVIEW “Federal courts have the authority to review the decision of a military board of correction under the Administrative Procedure Act (APA).” Bolton v. Dept. of the Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 406 (6th Cir. 2019) (citing 5 U.S.C. § 701 et seq.; Piersall v. Winter, 435 F.3d 319, 323-25 (D.C.

Piersall v. Winter, 435 F.3d 319, 321 (D.C.

Piersall v. Winter, 435 F.3d 319, 325 (D.C.

We review de novo district court dismissals for lack of subject-matter jurisdiction, Piersall v. Winter, 435 F.3d 319, 321 (D.C.

Although some courts have been even more deferential to military boards than civilian agencies, see, e.g., Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006), we need not decide if a more deferential standard applies in this case, because even under the less deferential standard that applies to all agency actions, we must affirm.

Id. at 324.

Cir. 2012) (citing Piersall v. Winter, 435 F.3d 319, 325 (D.C.

Analysis We review “de novo the district court’s grant of a motion to dismiss for lack of subject matter jurisdiction.” Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir. 2006).

We review de novo the district court’s grant of a motion to dismiss, see, e.g., Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir.2006), as well as its resolution of this “pure question of statutory interpretation,” United States v. Villanueva-Sotelo, *382 515 F.3d 1234, 1237 (D.C.Cir.2008); see also Murphy Exploration and Prod.

Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir.2006).

Judicial Review of Board Decisions Courts “review[] the decisions of boards for correction of military records ‘in light of familiar principles of administrative law.’” Piersall v. Winter, 435 F.3d 319, 322 (D.C.

Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006).

Generally, because military law “ ‘ “is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment,” ’ ” “review by a civil court of a judgment issued by a military court is barred.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (quotation and other citations omitted).

Although judicial 6 review of military board decisions follows “familiar principles of administrative law,” Piersall v. Winter, 435 F.3d 319, 321 (D.C.

That is the hallmark of a “decision making process [that] was deficient.” Piersall v. Winter, 435 F.3d 319, 322 (D.C.

Review of the BCNR As to Plaintiffs claims against the BCNR, it is a “well settled rule that decisions of boards for corrections of military records are subject to review under the APA [Administrative Procedure Act].” Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006); see, e.g., Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1513-14 (D.C.Cir.1989).

While judicial review of an agency’s actions is generally narrow and subject to a presumption of validity, review of the Board’s decisions in particular under the APA is “unusually deferential.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (citing Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989)).

Cf., e.g., Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir.2006) (noting that courts review “decisions of boards for correction of military records ‘in light of familiar principles of administrative law’ ”).

Circuit has recognized this as well, noting that while “review by a civil court of a judgment issued by a military court” is generally barred, Piersall v. Winter, 435 F.3d 319, 324 (D.C.

After all, "judges are not given the task of running the military." Piersall v. Winter, 435 F.3d 319, 322 (D.C.

Cal. June 6, 2017); 25 Austin v. U.S., Dep't of the U.S. Army, 614 F. App'x 198 , 205–06 (5th Cir. 2015); Barker v. United States, 404 F. Supp. 3d 251 , 261 (D.D.C. 2019); 26 3 Some courts review decisions by military review boards for the correction of military records under “an unusually deferential application of the ‘arbitrary and capricious’ standard.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Circuit reviews decisions by military review boards for the correction of military records under “an unusually deferential application of the ‘arbitrary and capricious’ standard.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Kreis, 866 F.2d at 1512 (holding that the district court erred by dismissing a claim challenging the Air Force Board for Correction of Military Records’ denial as arbitrary and capricious under the APA); accord Piersall v. Winter, 435 F.3d 319, 321-22 (D.C.

Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Circuit case law, review of the actions of military corrections boards is “unusually deferential.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.

However, “[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.” Piersall v. Winter, 435 F.3d 319, 321 (D.C.

Circuit typically reviews decisions by military review boards for the correction of military records under “an unusually deferential application of the ‘arbitrary and capricious’ standard.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Cir. 1977)). “[D]ecisions of boards for correction of military records are subject to review under the APA.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Judicial review of an ABCMR decision is “unusually deferential.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Cir. 2012) (reviewing a military board decision under the standards of the APA and administrative case law); Piersall v. Winter, 435 F.3d 319, 322 (D.C.

Mar. 24, 2006) (finding that the BCNR “cannot set aside, invalidate, or overrule a court-martial conviction”) (citing Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 362, 364 (D.C.Cir.1993)); cf. Piersall v. Winter, 435 F.3d 319, 323 (D.C.Cir.2006) (noting that “the Congress has expressly prohibited boards of correction from ’ reviewing the records of courts martial except in very limited circumstances” as delimited by Section 1552(f)).

Moreover, “while judicial review of an agency’s actions is generally narrow and subject to a presumption of validity, review of the [ABCMR’s] decisions in particular under the APA is ‘unusually deferential.’” Coe v. McHugh, 968 F.Supp.2d 237, 240 (D.D.C.2013) (quoting Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006)).

In the case of Board decisions, the Court must apply “an ‘unusually deferential application of the arbitrary or capricious standard’ of the APA.” Roberts v. United States, 741 F.3d 152, 158 (D.C.Cir.2014), quoting Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989); Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006); Cone, 223 F.3d at 793 .

In the case of *215 Board decisions, the Court must apply ‘“an unusually deferential application of the arbitrary or capricious standard’ of the APA.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006), quoting Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989).

DISCUSSION While this appears to be a case of first impression in this Circuit, the Court is mindful that “[t]hese are not uncharted waters.” Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir.2006).

Roberts v. United States, 741 F.3d 152, 158 (D.C.Cir.2014) (quoting Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (1989)); Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006); Cone v. Caldera, 223 F.3d 789, 793 (D.C.Cir.2000)).

See also, e.g., Coburn v. McHugh, 679 F.3d 924, 929 (D.C.Cir.2012) (reviewing a military board decision under the standards of the APA and administrative case law); Piersall v. Winter, 435 F.3d 319, 322 (D.C.Cir.2006) (same); Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997) (same); Wilhelmus v. Geren, 796 F.Supp.2d 157, 160 (D.D.C.2011) (same); Pettiford v. Sec’y of the Navy, 774 F.Supp.2d 173, 182-83 (D.D.C.2011) (same); Rudo v. Geren, 818 F.Supp.2d 17, 25 (D.D.C.2011) …

A district court’s “ability to review matters related to military discharges is limited, as military personnel decisions themselves lie outside the court’s jurisdiction.” Burt v. Winter, 503 F.Supp.2d 388, 390 (D.D.C.2007) (citing Piersall v. Winter, 435 F.3d 319, 321-22 (D.C.Cir.2006) (claims for retroactive promotion are non-justiciable)); Reilly v. Sec’y of the Navy, 12 F.Supp.3d 125,140 (D.D.C.2014) (merits of an individual military promotion not jus-ticiable); Caez v. U…

Moreover, while judicial review of an agency’s actions is generally narrow and subject to a presumption of validity, review of the ABCMR’s decisions in particular under the APA is “unusually deferential.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (quoting Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir. 1989)).

Summary Judgment under the APA Having found that the Secretary is not entitled to dismissal of Fulbright’s complaint, the Court moves to the Secretary’s motion for summary ■ judgment on Fulbright’s APA challenge. “[W]hile judicial review of an agency’s actions is generally narrow and subject to a presumption of validity, review of the Board’s decisions in particular under the APA is ‘unusually deferential.’ ” Coe, 968 F.Supp.2d at 240 (quoting Piersall v. Winter, 435 F.3d 31…

Moreover, while judicial review of an agency’s actions is generally narrow and subject to a presumption of validity, review of the Board’s decisions in particular under the APA is “unusually deferential.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (citing Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989)).

Circuit, review of the actions of military corrections boards is “unusually deferential.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (citing Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989)); see also Appleby v. Geren, 330 Fed.Appx. 196, 198 (D.C.Cir.2009) (unpublished).

See Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997); Piersall v. Winter, 435 F.3d 319, 321 (D.C.Cir.2006) (courts review “decisions of boards for correction of military records ‘in light of familiar principles of administrative law’” (quoting Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989))).

When reviewing actions of the ABCMR, courts apply an “unusually deferential application of ‘arbitrary or capricious’ standard.” Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006); Cone, 223 F.3d at 793 ; Hardy v. McHugh, 692 F.Supp.2d 76, 80 (D.D.C.2010).

Winter, 435 F.3d 319, 323 (D.C.

The parties agree that this Court may review decisions by the BCNR under the APA, and that to succeed, a plaintiff must show that the BCNR’s decision was “‘arbitrary, capricious or not based on substantial evidence.’ ” Def.’s Mot. to Dismiss at 2 (quoting Piersall v. Winter, 435 F.3d 319, 321-22 (D.C.Cir.2006)); see also Pl.’s Mot. for Summ.

The parties agree that this Court may review decisions by the BCNR under the APA, and that to succeed, a plaintiff must show that the BCNR’s decision was “‘arbitrary, capricious or not based on substantial evidence.’” Def.’s Mot. to Dismiss at 2 (quoting Piersall v. Winter, 435 F.3d 319, 321-22 (D.C.

Legal Standard for Review ofABCMR Decisions Judicial review of ABCMR decisions issued pursuant to 10 U.S.c. § 1552 is authorized under the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 701 , et seq.; Piersall v. Winter, 435 F.3d 319, 324 (D.C.

Legal Standard for Review of ABCMR Decisions Judicial review of ABCMR decisions issued pursuant to 10 U.S.C. § 1552 is authorized under the Administrative Procedure Act (“APA”). 5 U.S.C. §§ 701 , et seq.; Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006).

Piersall v. Winter, 435 F.3d 319, 323-24 (D.C.Cir. 2006) (“[T]he decisions of boards for correction of military records are subject to review under the APA.”).