Robert Rodriguez v. Virginia Penrod

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2016 Decided May 26, 2017

No. 15-1096

ROBERT W. RODRIGUEZ,

PETITIONER

v.

VIRGINIA S. PENROD, CHIEF OF STAFF FOR THE OFFICE OF THE

UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND

READINESS, UNITED STATES DEPARTMENT OF DEFENSE,

RESPONDENT

On Petition for Review of an

Order of the Department of Defense

Joseph E. Schmitz argued the cause for petitioner. With

him on the briefs was Paul D. Kamenar.

Patrick G. Nemeroff argued the cause for respondent.

With him on the brief were Benjamin C. Mizer, Principal

Deputy Assistant Attorney General at the time the brief was

filed, and Marleigh D. Dover, Attorney. Thomas G. Pulham,

Attorney, entered an appearance.

2

Before: SRINIVASAN, MILLETT, and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Lieutenant Colonel Robert

Rodriguez, a retired member of the Army National Guard,

claims that the Army unlawfully relieved him of command in

retaliation for whistleblowing, in violation of the Military

Whistleblower Protection Act of 1988 (“Whistleblower Act”),

10 U.S.C. § 1034. But first we must decide where Rodriguez’s

claim should be litigated—should he have started in district

court or did he properly proceed directly to this appellate court?

The default rule is that jurisdiction starts with the district court,

and that default rule applies here. We accordingly order that

this action be transferred to the United States District Court for

the District of Columbia.

I

A

The Whistleblower Act prohibits “tak[ing] (or

threaten[ing] to take) an unfavorable personnel action, or

withhold[ing] (or threaten[ing] to withhold) a favorable

personnel action, as a reprisal against a member of the armed

forces” for making protected whistleblowing communications.

10 U.S.C. § 1034(b) (2015). Any member of the armed forces

who believes he was subjected to such reprisal may submit an

allegation to an Inspector General within the Department of

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Defense, including within the relevant branch of the armed

services. See id. § 1034(c)(1), (j)(2)(A), (j)(2)(C). 1

The Inspector General who receives the allegation shall

then “determine * * * whether there is sufficient evidence to

warrant an investigation” into the matter. 10 U.S.C.

§ 1034(c)(4)(A). If there is, the Inspector General must

undertake that investigation and report the results to the

Secretary of Defense and the Secretary of the relevant military

department. Id. § 1034(c)(4)(D), (e)(1). If the Secretary of the

relevant military department then finds a “sufficient basis to

conclude” that a prohibited reprisal has occurred, id.

§ 1034(f)(1), the Secretary may order corrective action, id.

§ 1034(f)(2)–(3).

After the Inspector General reports the results of the

investigation, the service member may seek additional relief

from a board for the correction of military records, established

pursuant to 10 U.S.C. § 1552. See 10 U.S.C. § 1034(g). The

board reviews the report prepared by the Inspector General, id.

§ 1034(g)(2)(A), and subsequently forwards its proposed

decision to the Secretary of the relevant military department,

see, e.g., 32 C.F.R. § 581.3(g)(2)(ii)(B). That Secretary must

then issue a final decision on the matter and take appropriate

corrective action. 10 U.S.C. § 1034(g)(4)–(5).

Once administrative review is completed, a service

member who is still not satisfied with the disposition of his

claim may submit the matter to the Secretary of Defense for

further review. 10 U.S.C. § 1034(h). Under Section 1034(h),

1

In some circumstances (not relevant here), claims may also be

submitted to and processed by the Inspector General of the

Department of Homeland Security. See 10 U.S.C. § 1034(c)(1),

(j)(2)(B). Our discussion of the statutory scheme focuses on

submissions within the Defense Department.

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the Secretary of Defense “shall make a decision to reverse or

uphold the decision of the Secretary of the military department

concerned” within ninety days of receiving the member’s

request for review. Id.

B

Starting in 1995, Rodriguez served as a Lieutenant Colonel

in the New York Army National Guard, commanding the 1st

Battalion, 105th Infantry Regiment, 27th Infantry Brigade. In

July 1996, Rodriguez’s Brigade Commander, with the

concurrence of the Commanding General of the New York

Army National Guard, Brigadier General Robert Rose, relieved

Rodriguez of command. The stated reasons for that decision

were Rodriguez’s alleged failure to prevent soldiers from going

absent without leave (“AWOL”) and other losses in his

battalion, which showed up to training with more than ninety

unaccounted-for members.

Rodriguez complained to the Adjutant General of the New

York Army National Guard that he had been improperly

relieved of command. The National Guard thereafter

determined that Rodriguez had failed to control his battalion’s

losses and AWOLs, and that Rodriguez should be reassigned.

After Rodriguez was reassigned, Brigadier General Rose

issued Rodriguez a letter of reprimand for “fail[ing] to control

the AWOLs” and for his “lack of attention to strength

maintenance throughout [his] battalion.” D.A. 217. Rodriguez

promptly requested that Brigadier General Rose withdraw the

letter of reprimand and that the Adjutant General expunge any

record of the reprimand from his personnel file.

In April 1997, the Adjutant General directed Brigadier

General Rose to remove the letter of reprimand from

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Rodriguez’s personnel file, citing an agreement between the

Adjutant General and Rodriguez that “no further adverse action

would be taken against [him]” with respect to the matter of

troop loss and AWOLs. D.A. 280.

Around that same time, Rodriguez filed a whistleblower

complaint with the Department of Defense, in which he alleged

that Brigadier General Rose and others took actions against

him in reprisal for making unspecified whistleblower

communications. Then, in November 1997, Rodriguez’s

position in the National Guard was either “eliminated by State

headquarters,” Pet. Br. 10, or “downgraded due to

reorganization,” Resp. Br. 7. As a consequence, Rodriguez

transferred to the Retired Reserve.

Rodriguez’s whistleblower complaint was reviewed by the

Department of the Army Inspector General. After a couple

rounds of review, the Inspector General ultimately concluded,

in 1999, that all of Rodriguez’s claims of reprisal lacked merit.

A decade later, in September 2009, Rodriguez filed an

application for relief with the Army Board for Correction of

Military Records, again raising his allegations of reprisal. The

Army Board rejected, in relevant part, his reprisal claims and

requests for relief. The Board also denied Rodriguez’s request

for reconsideration.

As authorized by Section 1034(h) of the Whistleblower

Act, 10 U.S.C. § 1034(h), Rodriguez appealed the Board’s

decision to the Secretary of Defense. The Secretary, however,

delegated his authority to review Section 1034(h) appeals to the

Chief of Staff for the Office of the Under Secretary of Defense

for Personnel and Readiness, Pasquale Tamburrino. In January

2013, Tamburrino affirmed the Board’s decision.

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Rodriguez filed a petition for review of Tamburrino’s

decision in this court, Rodriguez v. Tamburrino, petition

docketed, No. 13-1192 (D.C. Cir. May 31, 2013). After the

parties reached a settlement agreement, we granted

Rodriguez’s motion to dismiss his petition without prejudice.

Under the settlement agreement, Virginia Penrod, the newly

assigned Chief of Staff for the Office of the Under Secretary of

Defense for Personnel and Readiness, agreed to “reconsider”

Tamburrino’s decision. D.A. 627.

On March 6, 2015, Penrod issued her decision on

reconsideration, upholding the decision of the Army Board for

Correction of Military Records and denying Rodriguez’s

requests for relief. Rodriguez again sought review directly in

this court.

II

We begin, as we must, “with the question of our

jurisdiction.” Sierra Club v. FERC, 827 F.3d 36, 43 (D.C. Cir.

2016) (quoting Brotherhood of Locomotive Eng’rs & Trainmen

v. Surface Transp. Bd., 457 F.3d 24, 27 (D.C. Cir. 2006)).

Jurisdiction in the federal courts of appeals hinges on two

things: “‘[t]he Constitution must have given to the court the

capacity to take [the case], and an act of Congress must have

supplied it.’” Micei Int’l v. Department of Commerce, 613 F.3d

1147, 1151 (D.C. Cir. 2010) (quoting Mayor v. Cooper, 73 U.S.

(6 Wall.) 247, 252 (1868)). Rodriguez indisputably has been

personally and directly aggrieved by the Defense Department’s

decision on his claim, so the question in this case is one of

statutory, not constitutional, jurisdiction. That predicate

statutory inquiry is essential to our power to decide this case:

“without statutory authorization,” “federal courts have no

jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

U.S. 546, 553 (2005).

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Rodriguez’s jurisdictional task is particularly difficult

because federal courts of appeals generally are courts of

review, not first view. See Texas v. United States, 798 F.3d

1108, 1115 (D.C. Cir. 2015). Yet Rodriguez seeks to bypass

the district court and obtain review in the first instance in the

court of appeals. That is permissible “only when authorized by

a specific direct-review statute.” Loan Syndications & Trading

Ass’n v. SEC, 818 F.3d 716, 719 (D.C. Cir. 2016). Otherwise,

“the ‘normal default rule’ is that ‘persons seeking review of

agency action go first to [a federal] district court.’” National

Auto. Dealers Ass’n v. Federal Trade Comm’n, 670 F.3d 268,

270 (D.C. Cir. 2012) (quoting Watts v. SEC, 482 F.3d 501, 505

(D.C. Cir. 2007)). 2

Rodriguez seeks review of a decision by the Secretary of

Defense under 10 U.S.C. § 1034(h). But nothing in Section

1034(h) or any other provision of the Whistleblower Act

provides for direct review in the courts of appeals. To the

contrary, as Rodriguez admits, the entire Whistleblower Act is

“silent” on the question of judicial review. Pet. Reply Br. 2. In

this jurisdictional context, silence has meaning: the default rule

of district court jurisdiction applies. See NetCoalition v. SEC,

715 F.3d 342, 347 (D.C. Cir. 2013) (“[U]nless the Congress

has * * * expressly supplied the courts of appeals with

jurisdiction to review agency action directly, an

[Administrative Procedure Act] challenge falls within the

general federal question jurisdiction of the district court and

must be brought there ab initio.”) (emphasis added).

2

See also American Petroleum Inst. v. SEC, 714 F.3d 1329,

1332 (D.C. Cir. 2013) (“Initial review [of agency action] occurs at

the appellate level only when a direct-review statute specifically

gives the court of appeals subject-matter jurisdiction to directly

review agency action.”) (quoting Watts, 482 F.3d at 505).

8

Reinforcing the point, the Whistleblower Act’s provision

for seeking relief from boards for correction of military

records, 10 U.S.C. § 1034(g)(1), similarly says nothing about

direct review in the federal courts of appeals, and district courts

have routinely reviewed those board decisions in the first

instance. See, e.g., Kidwell v. Department of Army, Bd. for

Correction of Military Records, 56 F.3d 279, 283–284 (D.C.

Cir. 1995).

Rodriguez points to the Administrative Procedure Act

(“APA”), which authorizes judicial review of agency action

under specified circumstances. See 5 U.S.C. §§ 701–706. That

is of no help to Rodriguez, for two reasons.

First, the APA creates a cause of action, not jurisdiction.

See Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 185

(D.C. Cir. 2006) (“[T]he APA does not confer jurisdiction,” but

“its judicial review provisions do provide * * * a limited cause

of action for parties adversely affected by agency action.”)

(citation omitted). In other words, the APA “says how to

review agency actions”; “it says next-to-nothing about where

that review should take place (e.g., in particular district courts

or courts of appeals).” Loan Syndications, 818 F.3d at 719. 3

Second, unless Congress expressly says otherwise, APA

review takes place first in the federal district courts, not the

courts of appeals. Micei, 613 F.3d at 1152 (“[I]n the absence

of a provision authorizing review in the court of appeals,

challenges to agency action to which the APA’s judicial review

provisions apply fall within the district court’s federal question

3

See also Califano v. Sanders, 430 U.S. 99, 105 (1977) (“[T]he

APA is not to be interpreted as an implied grant of subject-matter

jurisdiction to review agency actions.”).

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jurisdiction[.]”) (citing Bell v. New Jersey, 461 U.S. 773, 777

& n.3 (1983)).

Finally, Rodriguez asks this court to ground jurisdiction in

our “equitable powers.” Pet. Br. 3 (quoting Nader v. Volpe,

466 F.2d 261, 269 (D.C. Cir. 1972)). That we cannot do. This

court is a “creature[] of statute and possess[es] no jurisdiction

except as afforded by congressional enactment.” Owens v.

Republic of Sudan, 531 F.3d 884, 887 (D.C. Cir. 2008).

Accordingly, there is no legal basis for this court to

exercise direct-review jurisdiction over Rodriguez’s challenge

to the Secretary of Defense’s decision under Section 1034(h).

We need not dismiss the petition altogether, however.

Under 28 U.S.C. § 1631, we “shall, if it is in the interest of

justice, transfer [the] action * * * to any other * * * court in

which the action * * * could have been brought at the time it

was filed or noticed[.]” Given the resources and time already

invested in this matter by both parties, we conclude that

transfer is warranted. See generally Five Flags Pipe Line Co.

v. Department of Transp., 854 F.2d 1438, 1442 (D.C. Cir.

1988); Professional Managers’ Ass’n v. United States, 761

F.2d 740, 745 n.5 (D.C. Cir. 1985). Accordingly, we order the

action transferred to the United States District Court for the

District of Columbia.

So ordered.