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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.
One of the first things a court will consider is whether a plaintiff (the person bringing the action) has exhausted his or her “administrative remedies”. It requires a litigant to bring the complained of action to the administrative agency first and to follow the agency’s appeals process to there are no more avenues of relief left. In the military services, this means that an person aggrieved by the service must ordinarily attempt to correct the error by going to one of the Boards of Correction, a Discharge Review Board or some other board with jurisdiction over the error. It may be necessary to contest the board’s action before the Secretary of the military service. The remedies available and whether they have been exhausted can be confusing.
A related procedural obstacle is waiver. If a service member fails to avail himself or herself of an available procedural right and the time for that right has expired, a court is likely to find that the issue has been “waived” or given up. An individual who waits too long to file an application with a Board of Correction may forever give up his or her rights, even if those rights were legitimate. Rather than trying to wade through a service’s rules and regulations himself or herself, a service members should involve an attorney early in the process to increase the prospects for success.
Even when the case is properly before a court, the court’s review of the action will normally be limited to the “administrative record”. The administrative record consists of the evidence available to the agency when it rendered its decision. Everything submitted to the agency becomes part of the record, and the service member has the right to submit any evidence he or she wishes. It is therefore important to place all available evidence into the record so that it can be argues later. If evidence was not included in agency submissions, however, it cannot later be introduced into evidence in court. The court’s decision will be based upon the record.
Commander Boyle has a wide range of experience in military administrative law. While in the Navy Reserve, he was assigned to the Office of the Judge Advocate of the Navy’s General Litigation section where he defended actions under the APA and the Tucker and Little Tucker Acts. In that capacity, he learned the ins and outs of this specialized area of the law as he represented the Navy in U.S. District Courts throughout the United States. Many of these cases involved injunction actions seeking to prevent the discharge of service members or to prevent other adverse consequences. Few lawyers are as skilled in this area of the law.