Abdul-Matiyn v. The Department of the Navy

EASTERN DISTRICT OF NEW YORK

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FARRIS ABDUL MATIYN, :

:

Plaintiff, :

:

v. : MEMORANDUM & ORDER

: 21-CV-2133 (WFK) (LB)

DEPARTMENT OF THE NAVY, :

COUNCIL OF REVIEW RECORDS, :

:

Defendant. :

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WILLIAM F. KUNTZ, II, United States District Judge:

Farris Abdul Matiyn, proceeding pro se, filed this in forma pauperis action pursuant to

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)

(“Bivens”) against the Department of the Navy’s Council of Review Records with respect to his

application to correct his military records, specifically, a discharge upgrade. By Order dated

May 6, 2021, Plaintiff’s Bivens claim was dismissed for failure to state a claim for which relief

may be granted, ECF No. 5 at 3-5, and Plaintiff was granted leave to amend his complaint to the

extent he seeks review of a decision of the Navy’s military review board under the

Administrative Procedures Act (“APA”).

On May 24, 2021, Plaintiff submitted an amended complaint. For the reasons discussed

below, the amended complaint is DISMISSED without prejudice as premature. Plaintiff may

refile his complaint, if necessary, when the Naval Discharge Review Board (“NDRB”) has

issued its decision.

BACKGROUND

In the Complaint, Plaintiff alleges he had served in the military in the Vietnam War and

had applied to the NDRB seeking an upgrade from an undesirable discharge to a medical or

From the March 7, 2021 Letter from the Board for Correction of Naval Records

(“Board”) attached to the amended Complaint, it is clear that Plaintiff’s application is still

pending before the Board. ECF No. 6 at 7. The letter provides that Plaintiff’s application for

correction of his Naval record has been received, a docket number 6996-20 has been assigned,

that an advisory opinion has been prepared and forwarded to the Board, that Plaintiff has thirty

days to provide further information or documents to the Board, and that a decision will be made

“as scheduling will permit.” Id.

LEGAL STANDARD

A pleading must provide “a short, plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal, such a statement must include

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). A claim will be considered plausible on its face “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

At the same time, “document[s] filed pro se [are] to be liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations

and citations omitted).

A district court shall also dismiss an in forma pauperis action if the action: “(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B).

Under the Administrative Procedure Act, a plaintiff may petition a federal court for

judicial review of a final agency decision “for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704. Decisions of civilian military review boards, such as the Board named

in this action, are among the final agency decisions subject to judicial review. Dibble v.

Fenimore, 545 F.3d 208, 215 (2d Cir. 2008) (citing cases in which federal courts have reviewed

decisions by various boards charged with correcting military records). Although exhaustion of

administrative remedies is not required,1 “finality of an agency decision is mandatory before

judicial review.” Cillie v. McCarthy, 19-CV-334, 2020 WL 4926595, at *11 (D. Conn. Aug. 21,

2020) (Bolden, J.) (citing Brezler v. Mills, 86 F. Supp. 3d 208, 216 (E.D.N.Y. 2015) (Bianco, J.)

(“[I]t is well established that ‘the APA explicitly requires that an agency action be final before a

claim is ripe for review.’”) (quoting Air Espana v. Brien, 165 F.3d 148, 152 (2d Cir. 1999)); Top

Choice Distribs., Inc. v. U.S. Postal Serv., 138 F.3d 463, 466 (2d Cir. 1998) (“Finality is an

explicit requirement of the APA, while exhaustion is a judge-made creation[.]”)).

Here, there is no final agency action for this Court to review; the Board has not yet made

its decision on Plaintiff’s application. Thus, this action is premature.

1 Since Darby v. Cisneros, 509 U.S. 137, 147 (1993), which held courts can require an appeal to a superior

agency authority as a prerequisite to judicial review only when expressly required by statute, “[c]ourts have found

that this limitation on the exhaustion rule for Administrative Procedure Act claims applies in the military context.”

Cillie v. McCarthy, 2020 WL 4926595, at * 11 (citing Manker v. Spencer, 18-CV-372, 2019 WL 5846828, at *7 (D.

Conn. Nov. 7, 2019) (Haight, J.) (“[T]he Supreme Court's decision in Darby and the plain language of the APA

preclude the Defendant Secretary of the Navy from imposing an exhaustion of administrative remedy requirement

upon” plaintiffs); Doolen v. Esper, 16-CV-8606, 2018 WL 4300529, at *12 (S.D.N.Y. Sept. 10, 2018) (Briccetti, J.)

(“Under Darby . . ., federal courts have no authority to require plaintiffs to exhaust administrative remedies prior to

seeking judicial review under the APA unless a statute or agency regulation ‘clearly mandates’ exhaustion as a

prerequisite to judicial review. Here, no such requirement exists. Accordingly, plaintiff's APA claim is not barred

for failure to appeal to the ABCMR.” (citing Connors v. United States, 863 F.3d 158, 160 (2d Cir. 2017))); Crane v.

Sec'y of the Army, 92 F. Supp. 2d 155, 161–62 (W.D.N.Y. 2000) (Curtin, J.) (“Almost without exception, federal

courts throughout the country have also declined to create a military exception to the Court's decision in Darby.”)).

Accordingly, the Court dismisses the action without prejudice. If Plaintiff receives a

final agency decision from the Board, he may, if necessary, refile his complaint. The Clerk of

Court is directed to enter judgment and close this case.

The Court certifies pursuant to 28 U.S.C. §1915 (a)(3) that any appeal from this order

would not be taken in good faith and therefore in forma pauperis status is denied for purpose of

an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of Court is respectfully requested to send a copy of this order to Plaintiff by

mail, and to note the mailing on the docket.

SO ORDERED.

s/ WFK

_________________________________

HON. WILLIAM F. KUNTZ, II

UNITED STATES DISTRICT JUDGE

Dated: June 1, 2021

Brooklyn, New York