Filing Suit in Federal Court
If a significant administrative error or injustice has resulted in harm to a service member, it may be appropriate for that service member to file suit against the military service in U.S. District Court under the Administrative Procedures Act (APA), 5 U.S.C. 500 et. seq., or in the U.S. Court of Federal Claims under the Tucker Act, 28 U.S.C. 1491. These suits are complex and difficult to win; however, with the right facts and the right attorney, it is possible to correct the record and, if appropriate, receive backpay. It is even possible under the Equal Access to Justice Act, 28 U.S.C. 2412. However, before any suit can be filed, the service member will be required to “exhaust administrative remedies”.
The individual bringing the suit, in order to prevail, must prove that the actions of the government agency were arbitrary or capricious, contrary to statute, the constitution or agency regulation. These are difficult burdens to meet, and there are procedural hurtles that are designed to prevent court from hearing matters. A successful APA or Tucker Act action begins with the appropriate preparation of the record before the agency.