Got a BCMR/DRB case?

Read National Veterans Legal Services Program (NVLSP) v. Austin, Sec. Def.

“Various statutory provisions and regulations require the U.S. Department of Defense (“DoD”) to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records.”

We all like to refer to these prior decisions to triage a new case and to assist formulate arguments for why our client should win. Because they are publically available it is not necessary to have a paid research account like Lexis or Westlaw.

In 2019 the DoD discovered various opinions online which contained PII contrary to law. The DoD removed all 245,000 decisions from the website so a computer and manual review of the decisions could be made prior to reposting without PII. As of June 2020, a little over 169,000 decisions had been reposted. Apparently, the initial review using computer-assisted searches was insufficient to catch all of the errant PII so the boards have had to go back to the old system of manual redaction, which as we know is laborious and time-consuming.

The NVLSP sued for an order that DoD immediately reposts the remaining decisions. The Fourth Circuit held that the NVLSP had standing to sue but that the Administrative Procedures Act did not give the court subject matter jurisdiction. The APA only waives federal immunity when the agency has taken a “final action.” The court discusses what that the term “final agency action” can mean. Here, the court determined there was no final agency action to be complained of, rather the complaint was about DoD being too slow to repost decisions.

For background, and consistent with law,

“The DoD created an Electronic Reading Room website, as it was required to do by statute, and for years it has managed that site. As part of that management, when the DoD learned in April 2019 that public decisions contained personally identifiable information (which is prohibited by statute), it took down all of the Boards’ decisions, constituting some 245,000 decisions, so that it could comply with the statutory mandate. See 10 U.S.C. § 1552(a)(5) (requiring redaction of decisions to remove “all personally identifiable information”); see also 32 C.F.R. § 70.8(l)(2) (providing that “[t]o prevent a clearly unwarranted invasion of personal privacy, identifying details of the applicant and other persons will be deleted from documents made available for public inspection”). And since 2019, the DoD has been redacting the decisions and reposting them. As of February 18, 2020, it had reposted 18,593 decisions; as of June 5, 2020, it had reposted 138,192 decisions; as of December 15, 2020, it had reposted 169,061 decisions; and as of March 1, 2021, it has, according to our review of the DoD website, reposted 188,761 decisions. Significantly, the DoD never determined that NVLSP or any other member of the public was not entitled access to the website. Nor did the DoD ever purport to permanently deny the public access. As the website stated, it simply removed the decisions from the website temporarily “to conduct a quality assurance review.”

I think we can imply from the opinion that even if the court had found subject matter jurisdiction the NVLSP would have lost on the merits of the claim.

Keep in mind also that prior board decisions are not precedential, this is similar to the Defense Office of Hearings & Appeals decisions on security clearances. But, like an unpublished appellate decision they can be argued as persuasive in your client’s cause.

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