NVLSP appeals ruling on access to discharge review and record correction decisions

The National Veterans Legal Services Program has appealed to the U.S. Court of Appeals for the Fourth Circuit a district court ruling on an important case involving access to records of discharge review board and correction board decisions. NVLSP's website reports:

On April 10, 2020, the National Veterans Legal Services Program (NVLSP) appealed the decision of the U.S. District Court for the Eastern District of Virginia dismissing NVLSP’s lawsuit to compel the Pentagon to return all the past decisions of the Discharge Review Boards (DRBs) and Boards for Correction of Military Records (BCMRs) (collectively, the Boards) that the Pentagon removed since April 2019 from its public reading room. NVLSP is represented in this lawsuit by on a pro bono basis by Hunton Andrews Kurth LLP. The Defendants include the Secretaries of the military departments, the Acting Secretary of Homeland Security, the Department of Defense and the Secretary of Defense

“The Court’s decision that we are appealing was a disappointment, but we are undeterred in our efforts. We are appealing this decision because the Boards have a legal obligation to ensure that its decisions are publicly available,” said National Veterans Legal Services Program Executive Director Bart Stichman. “NVLSP and other veteran advocates depend on access to these decisions to assist veterans and help them seek vital benefits for themselves and their families that have been unjustly denied.”

In response to NVLSP’s litigation, the Pentagon has slowly begun the process of posting decisions again and now the postings include an index. However, the Pentagon has thus far re-posted fewer than half of the 245,000 past DRB and BCMR decisions that the Pentagon had made publicly available prior to April 2019 and few new decisions have been posted.

Background 

On Jan. 2, 2020, NVLSP filed a lawsuit in U.S. District Court for the Eastern District of Virginia seeking a declaratory judgment that the military ’s removal and continued withholding of the decisions of the Boards from the Public Reading Room is unlawful. NVLSP’s lawsuit also requested that the Court issue a declaratory judgment that Defendants’ failure to properly index DRB and BCMR decisions in a usable and concise form is unlawful.

Based on the Pentagon’s agreement to commence publishing decisions on January 31, 2020, NVLSP had withdrawn its motion for preliminary injunction on January 17.

On Feb. 3, 2020, NVLSP filed a renewed motion for preliminary injunction in response to the Pentagon’s reneging on its agreement to return all the past decisions of the DRBs and BCMRs.

The Virginian-Pilot's report explains:

The military said in court documents that it had begun to re-post decisions after they were checked for personal information. Decisions that hadn't been re-posted yet were still available upon request. About 25,000 decisions had been re-posted by early March, the military said.

On April 2, U.S. District Court Judge Rossie Alston Jr. dismissed the veteran group's lawsuit. Alston wrote that the group failed to show a "specific instance” in which it was unable to fulfill its mission because of a lack of information.

The judge also wrote that the court lacks jurisdiction over a matter that is essentially about improving the military's performance. He said the group's main contention is that the military is “not working fast enough” or with enough “fervor.”

The Administrative Procedure Act authorizes federal courts to "compel agency action unlawfully withheld or unreasonably delayed." Sounds like it can reach agencies that are "not working fast enough."