United States District Court, E.D. New York
For Plaintiff: Michael J. Bowe, Kasowitz, Benson, Torres & Friedman LLP, New York, NY, and Kevin Thomas Carroll, Quinn Emanuel, Urquhart & Sullivan LLP, Washington, DC.
For The Government: Leigh Aaron, Wasserstrom, Assistant United States Attorney, on behalf of Preet Bharara, United States Attorney, Southern District of New York, New York, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, United States District Judge.
This lawsuit arises from a military 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 the disciplinary proceeding under the Administrative Procedure Act (" APA" ), the Due Process clause, and the military regulations for conducting disciplinary proceedings.
Major Brezler has served in the Marine Corps for fourteen years, and has deployed overseas four times. He is currently a major in the United States Marine Corps Reserve, assigned since 2010 to duties at the Marine Reserve facility in Garden City, Long Island, where he is presently enrolled in the Marine Corps Command and Staff College.
According to the complaint, this lawsuit traces back to the summer of 2012, when plaintiff warned Marines deployed in Afghanistan about a dangerous individual. On August 10, 2012--two weeks after that warning--three Marines were murdered in the Forward Operating Base Delhi gymnasium in Afghanistan. Plaintiff asserts that senior Marine Corps officials have engaged in a " concerted two-year long effort . . . to cover-up the severe lapses and other highly damaging misconduct that led to those
murders" and that the current disciplinary proceedings are in furtherance of that " cover-up." (Pl. Mem. at 1-2.) Plaintiff further alleges that his disciplinary hearing was procedurally and substantively defective because, among other things, the Marine Corps failed to provide a timely, verbatim transcript that would allow for prompt review of the hearing record.
Defendants counter that, on July 25, 2012, plaintiff transmitted classified data via an unsecure, commercial e-mail account, which led the Naval Criminal Investigative Service to investigate plaintiff's handling of classified documents. According to the government, that investigation " revealed that Major Brezler had stored more than 100 official documents, including classified documents, on his personal laptop and/or external storage device." (Def. Mem. at 1.) Following that investigation, Major Brezler was referred to a Board of Inquiry for additional factfinding regarding his potential violation of regulations governing the handling of classified information. The Board of Inquiry conducted a hearing and recommended an honorable separation, but additional levels of administrative review of that recommendation are pending.
The present motion seeks a preliminary injunction prohibiting the Marine Corps from either acting upon the separation recommendation or proceeding any further in the disciplinary process. In the alternative, plaintiff seeks an injunction compelling the Navy to provide an accurate transcript of the initial disciplinary hearing.
For the reasons discussed below, the Court denies plaintiff's motion. In particular, it is well settled that an agency action must be final before judicial review of that decision is available under the APA. In the instant case, the record clearly demonstrates that the decision to separate plaintiff from the Marine Corps is not final; rather, it is a Board of Inquiry recommendation. As a result, plaintiff has additional layers of process available to him within the Department of Defense before any prospective order becomes final -- namely, (1) the record and recommendation are currently under review by the Staff Judge Advocate to the Commandant of the Marine Corps; (2) following that review, the recommendation will be reviewed by the Deputy Commandant, Manpower and Reserve Affairs; and (3) after that review, the record will be sent to the Secretary of the Navy for a final determination. Although plaintiff argues that the finality requirement is met because the Board of Inquiry has made factual findings, the Court is not persuaded by that argument. Importantly, the regulatory procedures currently available to plaintiff still allow for remand of the case for further factfinding, including a new hearing, if warranted. Therefore, there is nothing final about the Board of Inquiry findings. In any event, the final, reviewable, agency action in this case will be the separation determination by the Assistant Secretary (if such a determination is ever made), and not the preliminary factual findings.
The Court recognizes that Major Brezler has raised serious allegations about the circumstances surrounding the murders of three United States Marines in Afghanistan, and that Major Brezler's career in the Marine Corps is being jeopardized by a disciplinary proceeding that he asserts was flawed. However, the Court's jurisdiction is limited by the finality requirement of the APA, and the Court cannot immediately review the merits of plaintiff's challenges to the disciplinary proceedings simply because important interests are at stake and due process challenges are being raised. Instead, the Court must properly adhere to the jurisdictional boundaries imposed by Congress
and await a final action from the military that is reviewable under the APA. Accordingly, given the current absence of a final agency action, this Court lacks jurisdiction at this juncture to review plaintiff's claim under the APA, and no basis for an injunction exists at this time.
Finally, the Court notes that plaintiff's counsel suggested at oral argument that Major Brezler is also asserting a First Amendment retaliation claim -- namely, that Major Brezler was only referred to the Board of Inquiry because senior Marine Corps officials were unhappy with news coverage suggesting that Major Brezler had spoken to Congressman Peter King about the three murdered Marines in Afghanistan. However, no First Amendment claim appears in the complaint. Thus, Major Brezler must amend the complaint if he wishes to assert a separate cause of action for First Amendment retaliation that is independent of the APA. If such a claim were asserted, it would not be subject to the finality requirement of the APA. Nevertheless, this Court would still have to analyze whether the exhaustion doctrine should apply to that claim, as a matter of judicial discretion, if the Marine Corps is currently reviewing the facts surrounding that claim. Under certain circumstances, courts (including the Second Circuit) have allowed First Amendment claims to proceed against the military without requiring exhaustion. See, e.g., Able v. United States, 88 F.3d 1280 (2d Cir. 1996). Regardless, the Court's evaluation of those issues must await a formal amendment to the complaint to add a First Amendment retaliation claim.
A. Regulatory Framework
Because this lawsuit challenges the manner in which the Marine Corps is conducting Major Brezler's disciplinary proceeding, a discussion of the relevant administrative framework is necessary.
Applicable here are three sections of the United States Code, Title Ten, governing the involuntary separation of officers from the armed forces: 10 U.S.C. § 1181, § 1182 and § 14903. Together, Sections 1182 and 14903 provide that the " military department concerned" (here, the Marine Corps) must convene a " board of inquiry" to receive evidence in the case of any officer who has been required to show cause why he should not be separated. Section 14903 requires the board of inquiry to make a recommendation to the Secretary of the Navy, who reviews the recommendation and decides whether to remove the officer or close the case.
However, Section 1181 confers on the Navy the authority to establish its own specific procedures for implementing the board of inquiry process. The primary Navy regulations that govern separation proceedings are Secretary of the Navy Instruction 1920.6C, entitled " Administrative Separation of Officers," and Marine Corps Order P5800.16A, entitled " Marine Corps Manual for Legal Administration."
Under these Navy regulations, separation proceedings for Marines occur in the following manner. First, the Show Cause Authority notifies the officer that he must appear before a Board of Inquiry. The Board of Inquiry conducts a live hearing and receives testimony from witnesses. Based upon the record developed at the hearing, the Board of Inquiry makes a recommendation as to ...