Doyon v. United States

In the United States Court of Federal Claims

No. 19-1964C

Filed: January 13, 2021

NOT FOR PUBLICATION

)

ROBERT L. DOYON, )

) RCFC 12(b)(1); Subject-Matter

Plaintiff, ) Jurisdiction; RCFC 12(b)(6); Failure To

) State A Claim; Military Pay Act; 10

v. ) U.S.C. § 204; Military Disability

) Retirement Pay Act; 10 U.S.C. § 1201.

THE UNITED STATES, )

)

Defendant. )

)

Nathaniel McPherson, Counsel of Record, Latham & Watkins, Boston, MA, for plaintiff.

Jana Moses, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.

Kirschman, Jr., Director, Ethan P. Davis, Acting Assistant Attorney General, Commercial

Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; Lt.

Clayton McCarl, Litigation Attorney, United States Navy, JAG Corps, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, Robert L. Doyon, brings this military pay action challenging the Board for

Correction of Naval Records’ (“BCNR”) decision to deny his application for the correction of his

military records to reflect that he was unfit for duty and medically retired for psychosis or

psychoneuroses associated with post-traumatic stress disorder (“PTSD”). See generally Compl.

As relief, plaintiff seeks, among other things, an order that his military records be corrected,

military disability retirement pay and other pay. Id. at Prayer for Relief.

The government has moved to dismiss this matter for lack of subject-matter jurisdiction

and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and

(6) of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def.

Mot. The parties have also filed cross-motions for judgment upon the administrative record,

pursuant to RCFC 52.1. See generally id.; Pl. Mot. In addition, plaintiff has moved to

supplement the administrative record. Pl. Mot. to Supp. For the reasons set forth below, the

Court: (1) GRANTS-in-PART the government’s motion to dismiss; (2) DENIES plaintiff’s

motion to supplement the administrative record; (3) GRANTS the government’s motion for

judgment upon the administrative record; and (4) DENIES plaintiff’s cross-motion for judgment

upon the administrative record.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

Plaintiff, Robert L. Doyon, is a former service member in the United States Navy

(“Navy”). Compl. at ¶ 2. In this military pay action, plaintiff challenges the BCNR’s decision to

deny his application for the correction of his military records to reflect that he was unfit for duty

and medically retired for psychosis or psychoneuroses associated with PTSD. Id. at ¶ 6.

Specifically, plaintiff asserts three counts against the government in the complaint. First,

plaintiff alleges in Count I of the complaint that the BCNR’s alleged refusal to apply applicable

Department of Defense guidance in considering his application for the correction of his military

records was arbitrary, capricious, an abuse of discretion and contrary to law. Id. at ¶¶ 70-75.

Second, plaintiff alleges in Count II of the complaint that the BCNR’s rejection of his application

for the correction of his military records was arbitrary, capricious, unsupported by substantial

evidence and contrary to law. Id. at ¶¶ 76-78. Lastly, plaintiff alleges in Count III of the

complaint that the BCNR failed to afford him procedural due process in violation of the Due

Process Clause of the Fifth Amendment to the Constitution. Id. at ¶¶ 79-89. As relief, plaintiff

seeks, among other things, an order that his military records be corrected, military disability

retirement pay and other pay. Id. at Prayer for Relief.

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The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); the

administrative record (“AR”); the government’s motion to dismiss and motion for judgment upon the

administrative record (“Def. Mot.”); plaintiff’s response and opposition to the government’s motion to

dismiss and cross-motion for judgment upon the administrative record (“Pl. Mot.”); plaintiff’s motion to

supplement the administrative record (“Pl. Mot. to Supp.”); the government’s response and opposition to

plaintiff’s cross-motion for judgment upon the administrative record and plaintiff’s motion to supplement

the administrative record and reply in support of its motion to dismiss and motion for judgment upon the

administrative record (“Def. Resp.”); and plaintiff’s reply in support of his cross-motion for judgment

upon the administrative record and motion to supplement the administrative record (“Pl. Reply”). Except

where otherwise noted, all facts recited herein are undisputed.

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1. Plaintiff’s Military Service And Discharge

As background, plaintiff is a Vietnam War veteran who served in the Navy from March

17, 1966, to November 21, 1968. Id. at ¶¶ 2, 17; AR 0054. During his military service, plaintiff

was assigned to the U.S.S. Intrepid and he advanced to the rank of Airman. Compl. at ¶¶ 18-19.

Plaintiff received several medals and commendations—including the Vietnam Service Medal

(Bronze Star), the Vietnam Campaign Medal, and the National Defense Service Medal—during

his service in the Navy. Id. at ¶ 20.

On July 29, 1967, a missile on an airplane located on the U.S.S. Forrestal accidently

detonated causing an explosion and fire that eventually resulted in more than 130 deaths and 160

injuries. Id. at ¶¶ 2, 23. Plaintiff witnessed the immediate aftermath of the explosion and fire.

Id.

On October 23, 1967, four members of the U.S.S. Intrepid went Absent without Leave

(“AWOL”). Id. at ¶ 24. Because plaintiff was friendly with two of the deserters, he was

harassed and threatened by his shipmates. Id. In April 1968, plaintiff’s parents wrote to Senator

Edward Kennedy, to express concerns about his mental health. Id. at ¶ 25.

In May 1968, plaintiff went on unauthorized absence for two days. Id. at ¶ 26. Upon his

return to the Intrepid, plaintiff was referred to the ship’s sick bay because of his “inability to get

along with his peers, his recent mental agitation and deteriorating work habits, and his expression

of admiration for several of 1967’s famous four deserters.” Id. at ¶ 28 After being admitted to

sick bay, plaintiff was sedated with Thorazine. Id.

On August 16, 1968, plaintiff was transferred to Naval Base Subic Bay for further

evaluation. Id. at ¶ 29. Plaintiff returned to duty aboard the Intrepid on August 31, 1968. Id. at

¶ 32. A medical evaluation performed at Subic Bay in August 1968 diagnosed plaintiff with

“passive aggressive personality disorder.” Id. at ¶ 30. Thereafter, on September 23, 1968,

plaintiff witnessed a fatal plane crash while on duty. Id. at ¶ 36.

On September 26, 1968, plaintiff’s commanding officer recommended that the Navy

separate him from military service for unsuitability citing his diagnosis of passive aggressive

personality disorder. AR0231-32. A subsequent psychiatric evaluation conducted on October

28, 1968, changed plaintiff’s diagnosis to “Emotionally Unstable Personality #3210, with noted

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paranoid trait in his personality.” Compl. at ¶ 38. And so, plaintiff was discharged with an

honorable characterization of service for unsuitability effective on November 21, 1968.

AR0054.

2. Plaintiff’s VA Benefits Claim

In December 2013, plaintiff filed an application for disability compensation with the

Department of Veterans Affairs (“VA”) for PTSD. AR0356. In connection with this

application, a VA psychiatrist diagnosed plaintiff with PTSD in June 2014. AR0064. The VA

psychiatrist opined that plaintiff had experienced stressors in service, including witnessing a fatal

plane crash and a sinking ship incident that resulted in multiple casualties. AR0067, AR0072.

And so, on September 16, 2014, the VA granted plaintiff’s application for disability

compensation for PTSD, assigning a 50 percent disability rating effective December 9, 2013.

AR0088-091. On November 18, 2015, the VA granted plaintiff’s claim for an increased rating

for his service-connected PTSD, assigning a 70 percent disability rating effective August 27,

2015. AR0093-096.

3. The Hagel And Kurta Memoranda

On September 3, 2014, former Secretary of Defense Charles Hagel issued a

memorandum entitled “Supplemental Guidance to Military Boards for Correction of

Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post

Traumatic Stress Disorder” (the “Hagel Memorandum”). AR0184-187. The Hagel

Memorandum recognizes the attention that “has been focused upon the petitions of Vietnam

veterans to Military Department Boards for Correction of Military/Naval Records (BCM/NR) for

the purposes of upgrading their discharges based on claims of previously unrecognized Post

Traumatic Stress Disorder (PTSD).” AR0184. The Hagel Memorandum also states that its

purpose is to “help ensure consistency across the Services,” by providing supplemental policy

guidance for military correction boards on such applications. Id.

In this regard, the Hagel Memorandum requires that military boards give liberal

consideration to petitions submitted by veterans who assert that PTSD or PTSD-related

conditions “might have mitigated the misconduct that caused [their] under other than honorable

conditions characterization of service.” AR0186. The Hagel Memorandum also directs the

military correction boards to timely consider these petitions and to liberally waive any time

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limits that may have prevented their review. Id. In 2016, this “liberal consideration” standard

was codified into law and military review boards must review with liberal consideration a

veteran’s claim “that post-traumatic stress disorder or traumatic brain injury potentially

contributed to the circumstances resulting in the discharge or dismissal or to the original

characterization of the claimant’s discharge or dismissal.” 10 U.S.C. § 1552(h)(2)(B); 10 U.S.C.

§ 1553(d)(3)(A)(ii).

On August 25, 2017, Undersecretary of Defense Anthony Kurta issued a memorandum

(the “Kurta Memorandum”) which provides additional guidance clarifying and expanding upon

the Hagel Memorandum, to include veterans’ mental health as well as victimization by sexual

assault and sexual harassment as potential mitigation for misconduct. AR0892-897.

Specifically, the Kurta Memoranda provides that “[l]iberal consideration will be given to

veterans petitioning for discharge relief when the application for relief is based in whole or in

part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or

sexual harassment.” AR0893. The Kurta Memorandum also states that “[u]nless otherwise

indicated, the term ‘discharge’ includes the characterization, narrative reason, separation code,

and re-enlistment code.” AR0895. In addition, the Kurta Memorandum makes clear that

“[t]hese guidance documents are not limited to Under Other Than Honorable Condition

discharge characterizations but rather apply to any petition seeking discharge relief including

requests to change the narrative reason, re-enlistment codes, and upgrades from General to

Honorable characterizations.” Id.

4. The BCNR’s Decision

On September 14, 2017, plaintiff applied for the correction of his military records with

the BCNR.2 AR0020-21. In the brief supporting his application, plaintiff requested that the

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Under 10 U.S.C. § 1552, the Secretary of a military department may correct any military record of the

Secretary’s department when the Secretary considers it necessary to correct an error or remove an

injustice. 10 U.S.C. § 1552(a). Former members of the Armed Forces may bring a claim for review of a

discharge or dismissal based upon matters relating to post-traumatic stress disorder or traumatic brain

injury under Section 1552. 10 U.S.C. § 1552(h). In such cases, a military board must review the medical

evidence that is presented by the claimant and review with liberal consideration the veteran’s claim that

post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances

resulting in the discharge or dismissal, or to the original characterization of the claimant’s discharge or

dismissal. 10 U.S.C. § 1552(h)(2)(B); see also 10 U.S.C. § 1553(d)(3)(A)(ii).

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BCNR correct his military records to reflect that he was unfit and medically retired with at least

a 30% disability rating for psychosis or psychoneurosis. AR0045-047.

To support his petition, plaintiff submitted a psychiatric evaluation report authored by his

psychiatrist, Dr. Ted R. Greenzang. AR0375-391. In this report, Dr. Greenzang opines that

plaintiff was experiencing manifestations of PTSD at the time of his discharge from the military.

AR0389. Dr. Greenzang also opines that plaintiff’s medical history was not consistent with a

diagnosis of a personality disorder. Id. And so, Dr. Greenzang concludes in his report that

plaintiff’s separation from the Navy for unsuitability was “not an appropriate disposition.”

AR0390-391.

The BCNR also considered two advisory opinions that were prepared for its

consideration: (1) a September 20, 2018, advisory opinion prepared by the Senior Medical

(Psychiatric) Advisor (“SMA”) and (2) a September 24, 2018, advisory opinion prepared by the

Director of the Secretary of the Navy, Council of Review Boards. AR0002; AR004-009.

In the September 20, 2018, advisory opinion, the SMA considered several documents,

including plaintiff’s military medical records, an April 1967 correspondence from plaintiff’s

commanding officer denying plaintiff’s request for advanced schooling, a September 1968

discharge recommendation, an October 1968 psychiatric clinical note, and the VA’s rating

decisions regarding plaintiff’s VA benefits claims. AR0004-0008. Based upon this evidence,

the SMA recommended the denial of plaintiff’s petition, because: (1) plaintiff’s PTSD diagnosis

was not part of the then-existing American Psychiatric Association Diagnostic and Statistical

Manual (“DSM”) II (1968) and the PTSD diagnosis was not officially recognized until the

publication of the DSM III (1980) twelve years later and (2) the diagnoses most closely

resembling PTSD in the DSM II compensable by Department of Defense Physical Evaluation

Board action were known as “Psychoses and Psychoneuroses,” neither of which were applied to

plaintiff’s clinical presentation in 1968. AR0008.

The SMA also determined that there was no indication that plaintiff had ever complained

of symptoms directly related to in-service stressors. AR0007. Rather, the SMA found that

plaintiff had “demonstrated problems adjusting to the Navy prior to either of th[o]se tragic

events.” Id. In addition, the SMA observed that “[r]etrospective subjective accounts occurring

remote from an applicant’s active service are of significantly less probative value with respect to

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determining fitness contemporary with a given period of active duty.” AR0008. And so, the

SMA recommended the denial of plaintiff’s petition. Id.

The September 24, 2018, advisory opinion prepared by the Director of the Secretary of

the Navy, Council of Review Boards reached a similar conclusion. Specifically, the September

24, 2018, advisory opinion states that plaintiff’s military record contains:

[a] preponderance of objective evidence supporting the existence of

significant adjustment difficulties beginning prior to the applicant’s

enlistment and evolving into attitudinal and behavioral issues in conflict

with the requirements of military service prior to the two exposures to

psychological trauma which later occurred.

AR0009.

The BCNR also considered a memorandum prepared by Dr. Greenzang in response to the

SMA’s advisory opinion. AR0766-772. In that memorandum, Dr. Greenzang opines that the

advisory opinion “failed in multiple regards to provide an adequate evaluation of Mr. Doyon’s

condition, . . . [and it] led [Dr. Greenzang] to conclude that [Mr. Doyon] suffers from PTSD,

which existed during and stems from his experiences in the Navy.” AR0767.

The BCNR issued a decision denying plaintiff’s petition on November 20, 2018.

AR0001-003. In its denial decision, the BCNR waived the statute of limitations under 10 U.S.C.

§ 1552(b) and resolved plaintiff’s disability retirement claim on the merits without conducting an

in-person hearing. AR0001-002. In doing so, the BCNR “substantially concurred” with the

September 20, 2018, and September 24, 2018, advisory opinions. AR0002.

Specifically, the BCNR concluded that insufficient evidence of unfitness for continued

Naval service due to psychosis or psychoneurosis existed in the evidentiary record. Id. In this

regard, the BCNR found that, among other things, “there was no evidence of recurrent psychotic

episodes, or a single well-established psychotic episode with existing symptoms or residuals

sufficient to interfere with performance of duty.” Id.

The BCNR also declined to afford substantial weight to the VA’s disability ratings, or to

Dr. Greenzang’s medical opinion. Id. In this regard, the BCNR determined that the more recent

diagnoses of PTSD, although uncontested by the BCNR, “were made too distant in time from

1968 to be probative of [plaintiff’s] fitness for continued Naval service in 1968.” Id. The BCNR

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also observed that there was “more than enough evidence [in plaintiff’s military record] of

behavior consistent with a personality disorder to support the diagnosis made in 1968.” Id. And

so, the BCNR concluded that “insufficient evidence of error or injustice exists to warrant a

change to [plaintiff’s military] record.” Id.

Plaintiff commenced this action challenging the BCNR’s decision on December 27,

2019. See generally Compl.

C. Procedural Background

Plaintiff filed the complaint in this military pay matter on December 27, 2019. Id. On

May 27, 2020, the government filed a motion to dismiss this matter for lack of subject-matter

jurisdiction and for failure to state a claim upon which relief can be granted and a motion for

judgment upon the administrative record, pursuant to RCFC 12(b)(1) and (6), and RCFC 52.1.

See generally Def. Mot.

On June 24, 2020, plaintiff filed a response and opposition to the government’s motion to

dismiss and a cross-motion for judgment upon the administrative record. See generally Pl. Mot.

On June 24, 2020, plaintiff also filed a motion to supplement the administrative record. See

generally Pl. Mot. to Supp.

On July 15, 2020, the government filed a reply in support of its motion to dismiss and

motion for judgment upon the administrative record, and a response and opposition to plaintiff’s

cross-motion for judgment upon the administrative record and motion to supplement the

administrative record. See generally Def. Resp. On August 5, 2020, plaintiff filed a reply in

support of his motions. See generally Pl. Reply.

These matters having been fully briefed, the Court resolves the pending motions.

III. LEGAL STANDARDS

A. RCFC 12(b)(1) And Military Pay Cases

When deciding a motion to dismiss upon the ground that the Court does not possess

subject-matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all

undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the

non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(1). But, plaintiff

bears the burden of establishing subject-matter jurisdiction and he must do so by a

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preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988). Should the Court determine that “it lacks jurisdiction over the subject matter, it

must dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction

and “possess[es] only that power authorized by Constitution and statute . . . .” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Specifically, the Tucker Act grants the

Court jurisdiction over:

[A]ny claim against the United States founded either upon the Constitution,

or any Act of Congress or any regulation of an executive department, or

upon any express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1).

The Tucker Act is, however, “a jurisdictional statute; it does not create any substantive

right enforceable against the United States for money damages. . . . [T]he Act merely confers

jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right

exists.” United States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). And so, to pursue

a substantive right against the United States under the Tucker Act, a plaintiff must identify and

plead a money-mandating constitutional provision, statute, or regulation; an express or implied

contract with the United States; or an illegal exaction of money by the United States. Cabral v.

United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d

1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed.

Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes if it ‘can

fairly be interpreted as mandating compensation for damages sustained as a result of the breach

of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell, 463

U.S. 206, 217 (1983)) (brackets existing).

The Military Pay Act and the Military Disability Retirement Pay Act are such money-

mandating sources of law. 37 U.S.C. § 204; 10 U.S.C. § 1201; see also Bias v. United States,

131 Fed. Cl. 350, 354 (2017), aff’d in part and rev’d in part, 722 F. App’x 1009 (Fed. Cir. 2018)

(“[T]he Military Pay Act, 37 U.S.C. § 204, is a money-mandating source of law that provides the

[C]ourt with jurisdiction.”); Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005)

(holding that 10 U.S.C. § 1201 is a money-mandating statute). Under the Military Pay Act,

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members of a uniformed service are entitled to the basic pay of the pay grade to which they are

assigned, or distributed, in accordance with their years of service. 37 U.S.C. § 204(a). And so,

the United States Court of Appeals for the Federal Circuit has recognized that the Military Pay

Act “provides for suit in [this Court] when the military, in violation of the Constitution, a statute,

or a regulation, has denied military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed.

Cir. 2013) (quoting Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)). The Military

Disability Retirement Pay Act governs military retirement for disability. 10 U.S.C. § 1201; see

also Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005). The Act provides that

“upon the Secretary’s determination that a service member is ‘unfit to perform the duties of the

member’s office, grade, rank, or rating because of physical disability incurred while entitled to

basic pay,’ the service member may retire for disability.” Chambers, 417 F.3d at 1223; 10

U.S.C. § 1201(a).

This Court has also held that a claim must be justiciable to survive a motion to dismiss.

See Houghtling v. United States, 114 Fed. Cl. 149, 156–57 (2013). In this regard, the United

States Supreme Court has held that justiciability depends upon “whether the duty asserted can be

judicially identified and its breach judicially determined, and whether protection for the right

asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198 (1962); see also Murphy v.

United States, 993 F.2d 871, 872 (Fed. Cir. 1993). And so, a controversy is justiciable only if “it

is ‘one which the courts can finally and effectively decide, under tests and standards which they

can soundly administer within their special field of competence.’” Voge v. United States, 844

F.2d 776, 780 (Fed. Cir. 1988) (quoting Greene v. McElroy, 254 F.2d 944, 953 (D.C. Cir.

1958)); see also Antonellis, 723 F.3d at 1334; Adkins v. United States, 68 F.3d 1317, 1322 (Fed.

Cir. 1995).

The question of justiciability is frequently at issue when courts review military activities,

and courts have often held that decisions made by the military are “beyond the institutional

competence of courts to review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)

(“Because ‘decisions as to the composition, training, equipping, and control of a military force

are essentially professional military judgments,’ . . . the substance of such decisions, like many

other judgments committed to the discretion of government officials, is frequently beyond the

institutional competence of courts to review.”) (quoting Gilligan v. Morgan, 413 U.S. 1, 10

(1973)); Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) (“[J]udges are not given the task of

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running the Army.”); see also Murphy, 993 F.2d at 872; Voge, 844 F.2d at 780. But, even when

the merits of a military personnel decision are nonjusticiable, the process by which the decision

has been made may be subject to judicial review. Adkins, 68 F.3d at 1323 (“[A] challenge to the

particular procedure followed in rendering a military decision may present a justiciable

controversy.”) (emphasis original); Murphy, 993 F.2d at 873. And so, if the military chooses to

introduce its own procedural regulations, the Court may review any violations of such

regulations even if the underlying decision is nonjusticiable. Murphy, 993 F.2d at 873. In such

circumstances, the Court “merely determines whether the procedures were followed by applying

the facts to the statutory or regulatory standard.” Id.

B. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief

can be granted pursuant to RCFC 12(b)(6), this Court similarly assumes that all undisputed facts

alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s

favor. See Call Henry, Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017) (citing

Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014)). And so, to survive a motion

to dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

When the complaint fails to “state a claim to relief that is plausible on its face,” the Court

must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand,

“[w]hen there are well-pleaded factual allegations, a court should assume their veracity,” and

determine whether it is plausible, based upon these facts, to find against the defendant. Id. at

678-79 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

C. RCFC 52.1

Unlike a summary judgment motion under RCFC 56, the existence of a genuine issue of

material fact does not preclude a grant of judgment upon the administrative record under RCFC

52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011). Rather, the Court’s inquiry

is whether, “given all the disputed and undisputed facts, a party has met its burden of proof based

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on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131

(2006); see also Bannum v. United States, 404 F.3d 1346, 1355-56 (Fed. Cir. 2005).

In this regard, judicial review in military pay cases is generally limited to the

administrative record that was before a military board. Metz v. United States, 466 F.3d 991, 998

(Fed. Cir. 2006). The Court will not disturb the decisions of military boards unless the decision

was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Porter v.

United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998); Koretsky v. United States, 57 Fed. Cl. 154,

158 (2003). Given this, the Court does not reweigh the evidence in reviewing board decisions.

Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983). Rather, the Court considers

whether the conclusions of the board are supported by substantial evidence. Id. And so, the

Court does not substitute its judgment for that of the board when reasonable minds could reach

different conclusions based upon the same evidence. Wronke v. Marsh, 787 F.2d 1569, 1576

(Fed. Cir. 1986).

D. Supplementing The Administrative Record

Lastly, the Federal Circuit held in Axiom Resource Management, Inc. v. United States,

564 F.3d 1374 (Fed. Cir. 2009), that the “parties’ ability to supplement the administrative record

is limited” and that the administrative record should only be supplemented “if the existing record

is insufficient to permit meaningful review consistent with the APA.” Axiom Res. Mgmt., Inc.,

564 F.3d at 1379-81; see also Caddell Constr. Co. v. United States, 111 Fed. Cl. 49, 93 (2013).

The Federal Circuit has also recognized that the Supreme Court held in Camp v. Pitts that “‘the

focal point for judicial review should be the administrative record already in existence, not some

new record made initially in the reviewing court.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1379

(quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). This focus is maintained to prevent courts

from using new evidence to “convert the arbitrary and capricious standard into effectively de

novo review.” L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 671 (2009)

(internal quotation marks omitted); see also Murakami v. United States, 46 Fed. Cl. 731, 735

(2000). And so, this Court has interpreted the Federal Circuit’s directive in Axiom to mean that

supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is

not permitted when the documents proffered are unnecessary for an effective review of the

government’s decision. L-3 Commc’ns EOTech, Inc., 87 Fed. Cl. at 672.

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IV. LEGAL ANALYSIS

The government has moved to dismiss this matter for lack of subject-matter jurisdiction

and for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(1) and

(6), upon the grounds that the Court does not possess jurisdiction to consider plaintiff’s due

process claim and that the remaining claims in the complaint should be dismissed because

plaintiff is not entitled to the requested relief. Def. Mot. at 12-16.

The parties have also filed cross-motions for judgment upon the administrative record,

pursuant to RCFC 52.1. See generally id.; Pl. Mot. The government argues in its motion for

judgment upon the administrative record that the BCNR’s decision to deny plaintiff’s application

to correct his military records was reasonable and supported by substantial evidence, because the

BCNR applied the appropriate legal standards and adequately considered plaintiff’s evidence and

claims. Id. at 16-26. Plaintiff counters in his cross-motion for judgment upon the administrative

record that he has alleged plausible claims in the complaint, and he argues that the record

evidence in this case shows that the BCNR’s decision to deny his application was arbitrary,

capricious, not supported by substantial evidence and contrary to law. Pl. Mot. at 22-50. In

addition, plaintiff has moved to supplement the administrative record with several documents

about the drug Thorazine. See generally Pl. Mot. to Supp.

For the reasons set forth below, a careful review of the complaint and the administrative

record shows that the Court does not possess subject-matter jurisdiction to consider plaintiff’s

due process claim. Plaintiff also has not shown that supplementing the administrative record is

warranted in this military pay case. In addition, the administrative record also makes clear that

the BCNR complied with applicable law in considering plaintiff’s application to correct his

military records and that the BCNR’s decision to deny plaintiff’s application was reasonable and

supported by substantial evidence. And so, the Court: (1) GRANTS-in-PART the

government’s motion to dismiss; (2) DENIES plaintiff’s motion to supplement the

administrative record; (3) GRANTS the government’s motion for judgment upon the

administrative record; and (4) DENIES plaintiff’s cross-motion for judgment upon the

administrative record.

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A. The Court Grants-In-Part The Government’s Motion To Dismiss

As a preliminary matter, the government persuasively argues that the Court should

dismiss plaintiff’s due process claim for lack of subject-matter jurisdiction. It is well-established

that this Court does not possess subject-matter jurisdiction to consider claims based upon the due

process clauses of the Fifth or Fourteenth Amendments, because these constitutional provisions

are not money-mandating. LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed Cir. 1995)

(finding that the due process and equal protection clauses of the Fourteenth Amendment do not

constitute “a sufficient basis for jurisdiction because they do not mandate payment of money by

the government”); see also Quailes v. United States, 25 Cl. Ct. 659, 664, aff’d, 979 F.2d 216

(Fed. Cir. 1992) (quoting Mullenberg v. United States, 857 F.2d 770, 772-73 (Fed. Cir. 1988))

(“This court does not have jurisdiction ... because neither the due process or equal protection

clauses of the Constitution ‘obligate the United States to pay money damages.’”); McCullough v.

United States, 76 Fed. Cl. 1, 4 (2006) (“[T]he Fifth Amendment is not a source that mandates the

payment of money to plaintiff.”); James v. Caldera, 159 F.3d 573, 581 (Fed. Cir. 1998). In this

case, plaintiff alleges in Count III of the complaint that the BCNR failed to afford him

procedural due process in violation of the Due Process Clause of the Fifth Amendment. Compl.

at ¶ 83-85. The Court may not consider plaintiff’s constitutional law claim because it is not

based upon a money-mandating source of law. LeBlanc, 50 F.3d at 1028. And so, the Court

must dismiss this claim for lack of subject-matter jurisdiction. RCFC 12(b)(1).

The government’s argument that the Court should also dismiss the remaining claims in

this case for failure to state a claim upon which relief can be granted is less persuasive. The

government argues that the Court should dismiss Counts I and II of the complaint, because

plaintiff is not entitled to the relief that he seeks in those claims—namely, a 30% disability

rating, disability retirement pay and placement on the permanent disability retirement list. Def.

Mot. at 14-16; Def. Resp. at 3-4. In this regard, the government contends that plaintiff would not

be entitled to such relief—even if the Navy were to change his medical diagnosis to

psychoneurosis—because such a diagnosis would not necessarily mean that plaintiff was unfit

for duty. Def. Mot. at 16.

The government’s argument is, at bottom, an argument about the nature of the relief that

the Court may award to plaintiff should the Court determine that the BCNR erred in denying

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plaintiff’s application to correct his military records. Because this issue is more appropriately

addressed within the context of the parties’ cross-motions for judgment upon the administrative

record, and the complaint contains well-pleaded factual allegations to support plaintiff’s claims

in Counts I and II of the complaint, the Court declines to dismiss these claims for failure to state

a claim upon which relief can be granted. RCFC 12(b)(6).

B. Supplementing The Administrative Record Is Not Warranted

The Court also declines to supplement the existing administrative record in this military

pay case with information about the drug Thorazine. Plaintiff seeks to supplement the

administrative record with: (1) a National Center for Biotechnology Institute study describing

the use and effects of Thorazine (Chlorpromazine); (2) two Thorazine advertisements; and (3) a

June 2, 2013, scientific article by the Science History Institute describing the impact of

Thorazine on the treatment of mental illness. See generally Pl. Mot. to Supp. The Federal

Circuit has long recognized that judicial review in military pay cases is generally limited to the

administrative record that was before a military board. Metz v. United States, 466 F.3d 991, 998-

99 (Fed. Cir. 2006). As the government correctly observes in its opposition to plaintiff’s motion

to supplement, the existing administrative record contains all of the documents that provided the

factual, procedural and legal predicate for the BCNR’s decision to deny plaintiff’s application to

correct his military records. Def. Resp. at 12-13; see generally AR. Given this, supplementation

of the administrative record with the aforementioned documents is not warranted and the Court

DENIES plaintiff’s motion.3

C. The BCNR’s Decision Was In Accordance

With Law And Supported By Substantial Evidence

Turning to the merits of plaintiff’s claims, the administrative record shows that the

BCNR complied with applicable law in considering plaintiff’s application to correct his military

records and that the BCNR’s denial decision is supported by substantial evidence. And so, for

the reasons that follow, the Court GRANTS the government’s motion for judgment upon the

3

The Court may exercise its discretion to take judicial notice of the certain incontrovertible facts

contained in these documents about the uses and effects of Thorazine, consistent with Federal Rule of

Evidence 201. See Fed. R. Evid. 201.

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administrative record and DENIES plaintiff’s cross-motion for judgment upon the administrative

record.

1. The BCNR Did Not Violate Department Of Defense Guidance

As an initial matter, the record evidence shows that the BCNR did not err by declining to

apply the Hagel Memorandum and Kurta Memorandum to plaintiff’s application. Plaintiff

argues in his cross-motion for judgment upon the administrative record that the BCNR erred by

failing to apply the guidance and standards set forth in the Hagel and Kurta Memoranda to give

liberal consideration to his application, because it is undisputed that plaintiff has been diagnosed

with PTSD. Pl. Mot. at 25, 30-31. A careful review of these memoranda shows, however, that

the BCNR appropriately declined to apply this guidance in this case.

The Hagel and Kurta Memoranda require that military correction boards give liberal

consideration to veterans’ applications petitioning for discharge relief, when the application for

relief is based in whole or in part on matters relating to mental health conditions, including

PTSD. Def. Mot. at 19; Pl. Mot. at 23; see also AR0186; AR0893. While plaintiff correctly

observes that his claims are related to his PTSD diagnosis, the Court agrees with the government

that the Hagel Memorandum does not apply to the application at issue in this case because

plaintiff is not challenging the characterization of his discharge from the Navy.

The Hagel Memorandum is entitled “Supplemental Guidance to Military Boards for

Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans

Claiming Post Traumatic Stress Disorder.” AR0184. As the title of this memorandum suggests,

the Hagel Memorandum applies to petitions containing discharge characterization upgrade

requests. AR0186. In this case, it is undisputed that plaintiff is not seeking to challenge the

honorable characterization of his discharge from the Navy. Def. Mot. at 19-20; Pl. Mot. at 32-35

(showing that plaintiff does not challenge his honorable discharge characterization). Rather, the

complaint makes clear that plaintiff seeks to challenge the Navy’s decision to separate him from

the military for unsuitability, rather than for unfitness. Compl. at ¶¶ 39-40. Because the Court

does not read the Hagel Memorandum to apply to unfitness determinations, particularly when

they are unrelated to the characterization of discharge, the Court agrees with the government that

the BCNR did not err by declining to apply the guidance in the Hagel Memorandum to plaintiff’s

application.

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Plaintiff’s argument that the Kurta Memorandum applies to his case, because he is

challenging the narrative reason for his honorable discharge from the Navy presents a closer

question. The Kurta Memorandum provides that “[l]iberal consideration will be given to

veterans petitioning for discharge relief when the application for relief is based in whole or in

part on matters relating to mental health conditions, including PTSD,” and that “[u]nless

otherwise indicated, the term “discharge” includes the characterization, narrative reason,

separation code, and re-enlistment code.” AR0893; AR0895 (emphasis supplied.). The Kurta

Memorandum also makes clear that its guidance is “not limited to Under Other Than Honorable

Condition discharge characterizations but rather apply to any petition seeking discharge relief

including requests to change the narrative reason, re-enlistment codes, and upgrades from

General to Honorable characterizations.” AR0895. And so, plaintiff correctly argues that the

Kurta Memorandum requires that the BCNR give “liberal consideration” to applications seeking

discharge relief that challenge the narrative reason for a military discharge. Pl. Mot. at 34;

AR0895.

But, plaintiff’s contention that he is challenging the narrative reason for his honorable

discharge from the Navy in this case is belied by a plain reading of the complaint and plaintiff’s

application to correct his military records. The complaint and plaintiff’s application before the

BCNR make clear that plaintiff seeks to have his military records corrected to show that he was

medically retired due to PTSD, with a disability rating of no less than 30% and was thus, unfit

for duty in 1968. AR0019-0021; Compl. at Prayer for Relief. Notably, plaintiff’s application

before the BCNR states that he seeks to correct his military records to “show that he was found

unfit and medically retired for psychosis and psychoneuroses.” AR0019 (emphasis supplied);

see also AR0025 (plaintiff seeks “to correct an error made in 1968 when Airman Doyon should

have been granted a military retirement for the mental health impacts of trauma he experienced

while in service.”). Because plaintiff seeks a determination regarding his fitness for duty in

1968, the Court is not persuaded that the claim that plaintiff asserts in this case can be properly

characterized as a challenge to the narrative reason for his discharge.

17

Indeed, as the government correctly observes, a determination regarding plaintiff’s fitness

for duty in 1968 is necessary to award the relief sought in this case.4 Def. Resp. at 6; see also

AR0002 (showing that the BCNR concluded that there is “insufficient evidence of unfitness for

continued naval service due to psychosis or psychoneurosis.”). As discussed above, the Court

does not read either the Hagel or Kurta Memoranda to apply to such unfitness or disability

retirement determinations. AR0184-0187; AR0892-0897. And so, the Court concludes that the

BCNR did not err by declining to apply those memoranda to plaintiff’s claims.

2. The BCNR’s Decision Is Supported By Substantial Evidence

The record evidence also shows that the BCNR’s decision to deny plaintiff’s application

was reasonable and supported by substantial evidence. It is well-established that the Court will

not disturb the decision of the BCNR unless the board’s decision was arbitrary, capricious,

unsupported by substantial evidence, or contrary to law. Porter v. United States, 163 F.3d 1304,

1312 (Fed. Cir. 1998); Koretsky v. United States, 57 Fed. Cl. 154, 158 (2003). Plaintiff has not

made such a showing here for several reasons.

First, the record evidence shows that the BCNR reasonably considered the medical

opinion of plaintiff’s psychiatrist, Dr. Greenzang, and the VA’s disability ratings for plaintiff’s

service-related PTSD, in reviewing plaintiff’s application. Plaintiff argues in his cross-motion

that the BCNR erred, because it should not have dismissed the determinations made by Dr.

Greenzang and the VA that he suffers from service-related PTSD. Pl. Mot. at 43-44. But, a

review of the record evidence makes clear that the BCNR appropriately considered this evidence

in reaching the decision to deny plaintiff’s application. In this regard, the BCNR acknowledges

in its decision that plaintiff was “rated by the Department of Veterans Affairs (VA) for Post-

Traumatic Stress Disorder (PTSD) in 2013 and assigned a 50% disability rating . . . [and that

plaintiff’s disability rating] was later increased to 70% by the VA.” AR0002. The BCNR also

acknowledges in the decision that plaintiff has been diagnosed with PTSD. Id.

The record evidence also shows that the BCNR reasonably determined that Dr.

Greenzang’s 2017 PTSD diagnosis and the VA’s 2014 and 2015 disability ratings occurred “too

4

The government argues that a determination of whether plaintiff was fit for duty is not a judicial

province. Def. Mot. at 16; Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983).

18

distant in time” from the date of plaintiff’s discharge from the Navy to be probative of whether

plaintiff was fit for duty in 1968. In this regard, the BCNR states in its decision that “these

opinions were reached “too distant in time” from 1968 and therefore, were less credible than

plaintiff’s October 28, 1968, diagnosis of “Emotional Unstable Personality #3210, with noted

paranoid trait in his personality.” AR0002; AR0234. The substantial evidence supports the

BCNR’s determination.

The administrative record makes clear that the VA examined plaintiff for PTSD

symptoms more than 40 years after plaintiff was discharged from the Navy. AR0087-0091 (VA

rating decision, Sept. 16, 2014); AR0092-0096 (VA rating decision, Nov. 18, 2015); AR0064-

0081 (VA PTSD examination report, June 11, 2014); AR0511-517 (VA PTSD examination

report, Oct. 21, 2015). The record evidence also shows that Dr. Greenzang’s medical opinion

diagnosing plaintiff with PTSD was issued in 2017, again, more than four decades after plaintiff

was discharged. AR0375-0391 (Dr. Greenzang’s opinion, Sept. 13, 2017).

The record evidence also shows that the Navy medical professionals who diagnosed

plaintiff with a personality disorder in 1968 personally observed plaintiff at that time. AR0226-

229; AR0234 (showing that two Navy mental health specialists personally observed plaintiff

before changing his diagnosis to “Emotional Unstable Personality #3210, with noted paranoid

trait in his personality.”). Given the evidence in the administrative record showing the

considerable passage of time between plaintiff’s discharge from the Navy and his PTSD

diagnosis, the substantial evidence supports the BCNR’s determination that plaintiff’s PTSD

diagnosis and VA disability ratings were too remote to be probative of plaintiff’s fitness for duty.

The BCNR’s finding that plaintiff was properly separated from the Navy for unsuitability

due to a preexisting personality disorder is also supported by substantial evidence. Plaintiff

argues that the BCNR’s finding lacks evidentiary support, because he was not found to have a

personality disorder upon entry to the military and his service record shows adequate

performance during the first 12 months of his enlistment. Pl. Mot. at 38-39. But, again, there is

substantial evidence in the record to support the BCNR’s findings.

The record evidence shows that plaintiff went on unauthorized absence from the Navy in

May 1968, because he was “suffering from significant emotional torment.” AR0006; Compl. at

¶ 26. The record evidence also shows that, after plaintiff returned to duty, he was transferred to

19

Naval Base Subic Bay on August 16, 1968, because he was “expressing fears of possibly doing

harm to himself and also expressing admiration for sailors who [had] deserted from his ship.”

AR0006; AR0226.

Plaintiff’s hospital records from this time period also note that plaintiff felt “isolated and

different from his shipmates,” and that he was “definitely afraid of forming close relationships

with his peer groups.” Id. Plaintiff’s medical records similarly show that a medical officer

concluded in 1968 that plaintiff suffered from a passive aggressive personality disorder and

recommended that he be returned to full duty. AR0229. As discussed above, this diagnosis was

subsequently changed on October 28, 1968, to Emotionally Unstable Personality #3210, with

noted paranoid traits in his personality. AR0234.

While plaintiff maintains that his medical and service records show that he suffered from

service-related PTSD at the time of his discharge from the Navy, the BCNR reasonably

determined that this evidence supports a finding that plaintiff had a personality disorder at that

time. Given this evidence, the BCNR’s conclusion that “there was more than enough evidence

of behavior consistent with a personality disorder to support the diagnosis made in 1968” is

supported by substantial evidence. AR0002.

The record evidence also shows that the BCNR appropriately weighed and considered the

advisory opinions provided by the SMA and the Director of the Secretary of the Navy, Council

of Review Boards in reviewing plaintiff’s application. AR0002; AR0004-0009. Plaintiff argues

that the BCNR’s reliance upon these two advisory opinions is misplaced, because the opinions

are “inconsistent with the factual record.” Pl. Reply at 12-13. But, the record evidence shows

that the BCNR properly considered and weighed the probative value of these advisory opinions

in reviewing plaintiff’s application.

In this regard, the record evidence shows that the BCNR “substantially concurred” with

the findings in the SMA’s September 20, 2018, advisory opinion and the Director of the

Secretary of the Navy, Council of Review Boards’ September 24, 2018, advisory opinion to

support its determination that “there was no evidence of recurrent psychotic episodes, or a single

well-established psychotic episode with existing symptoms or residuals sufficient to interfere

with performance of duty in [plaintiff’s] case.” AR0002; AR0007-0008. These advisory

opinions both find that there is little objective evidence in plaintiff’s service treatment record

20

suggesting that a PTSD-related stress reaction made a significant contribution to the

circumstances resulting in his administrative separation from the Navy. AR0008; AR0009.

Again, there is substantial evidence in the record to support this finding.

A review of the record evidence shows that the medical record for plaintiff’s August

1968 hospitalization at Subic Bay is devoid of any indication that plaintiff was suffering from

psychoses or psychoneuroses. AR0226-0227. The record evidence also shows that plaintiff

returned to duty after this hospitalization on August 30, 1968. AR0227; AR0229.

The evidentiary record also shows that, during a subsequent October 28, 1968, mental

health examination, plaintiff was determined to be “clearly sane and responsible, not amenable to

psychiatric treatment within the service,” and that he “[did] not warrant hospitalization.”

AR0234. In addition, the administrative record shows that plaintiff enrolled in a major

university after being discharged from the Navy and that he did not suffer from any documented

psychotic episodes for 40 years. AR0008-0009. And so, the record evidence shows that the

BCNR’s determination that there was no objective evidence that plaintiff suffered from recurrent

psychotic episodes is supported by substantial evidence.

The Court is also not persuaded by plaintiff’s argument that the BCNR erred by giving

too much weight to his Naval performance evaluations and to a letter sent to Senator Kennedy by

his parents. Pl. Reply at 14; AR0220-0222; AR0583; AR0603-0606. Plaintiff correctly observes

that these documents do not state that he had a personality disorder. See id. But, the

performance evaluations and letter do provide contemporaneous support for the BCNR’s

determination that plaintiff was “deeply bothered by [his] service in the Navy.” AR0002.

Notably, plaintiff’s performance evaluations state that plaintiff “found it difficult to

adjust to Navy life,” “[he] has not made a genuine effort to advance on his own,” and that

plaintiff “seldom displays initiative or interest in his work.” AR0603; AR0606. The letter sent

to Senator Kennedy also states that plaintiff was in a “deeply depressed mood” and that his

parents feared that plaintiff would “attempt to jump ship or commit some desperate act for which

he will not be responsible in his present state of mind.” AR0222; AR0876. In its decision, the

BCNR states that it relied upon the letter sent to Senator Kennedy to find that plaintiff was

“deeply bothered” by his service in the Navy due to his personal convictions against the Vietnam

War. AR0002. And so, the BCNR reasonably concluded that plaintiff’s personal convictions,

21

rather than the traumatic incidents that plaintiff witnessed during his military service, were the

basis for the conduct which led to plaintiff’s discharge due to unsuitability. Id.

The Court also observes that plaintiff correctly argues that there is some evidence in the

administrative record to support his claim that he suffered from service-related PTSD at the time

of his discharge from the Navy. Pl. Mot. at 41-44; AR0203-0204; AR0206-0209; AR0222;

AR0224; AR0375-0390; AR0068-0070; AR0362-0363. In this regard, it is notable that

plaintiff’s PTSD diagnosis is not in dispute. Def. Mot. at 3; Def. Resp. at 8; AR0002 (“the

Board does not contest that [plaintiff has] been diagnosed with PTSD”). But, the administrative

record in this military pay case shows that the BCNR fully considered this evidence and that the

board’s decision to deny plaintiff’s application to correct his military records is supported by

substantial evidence. Given this, the Court will not substitute its judgment for that of the BCNR

when reasonable minds could reach different conclusions about plaintiff’s mental health in 1968

based upon the same evidence. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986). And

so, the Court GRANTS the government’s motion for judgment upon the administrative record

and DENIES plaintiff’s cross-motion for judgment upon the administrative record.

V. CONCLUSION

In sum, a careful review of the complaint and the administrative record shows that the

Court does not possess subject-matter jurisdiction to consider plaintiff’s constitutional law claim.

The administrative record also shows that the BCNR complied with applicable law in

considering plaintiff’s application to correct his military records and that the BCNR’s decision to

deny plaintiff’s application was reasonable and supported by substantial evidence.

And so, for the foregoing reasons, the Court:

1. GRANTS-in-PART the government’s motion to dismiss;

2. DENIES plaintiff’s motion to supplement the administrative record;

3. GRANTS the government’s motion for judgment upon the administrative record; and

22

4. DENIES plaintiff’s cross-motion for judgment upon the administrative record.

The Clerk shall enter judgment accordingly.

Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

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