D.C. Circuit reminds military administrative boards: we're watching

E. Barrett Prettyman Courthouse,
Washington D.C.

For lawyers assisting U.S. servicemembers and veterans, some of the most challenging cases involve efforts to correct errors by military law enforcement agencies. These agencies have powers to list a person as a suspect (titling) and entered into law enforcement databases (indexing). These decisions can be fraught with error yet difficult to undo, and can bring a host of lifelong consequences to the wrongfully titled.

The law enforcement agencies have their own procedures for expungement and correction of records based on service regulations, but these reviews are done in-house and the agencies enjoy relative independence from oversight bodies of the services they support such as Inspectors General. As a result, and not surprisingly, such law enforcement reviews rarely grant relief.

Applicants can also petition the service boards for correction of military records ("Boards"). These Boards are comprised of civilians vested with authority to correct errors or injustices -- a broad mandate that includes review of law enforcement titling errors. Critics contend that these boards are too overworked to give proper consideration to individual applications, make it hard for in-person hearings, and enjoy too-cozy relationships with the services from which they are ostensibly independent.

Those denied relief from a Board can sue in federal district court, and decisions there can be reviewed by the United States Courts of Appeals. Last week, the Court of Appeals for the D.C. Circuit decided such a case, Code v. McCarthy, No. 18-5122 (D.C. Cir. 2020).

This issue in Code was whether the Board erred in declining to expunge Army law enforcement's titling decision for false official statement and larceny when the member presented to the Board a clear factual record that the titling decision was erroneous.

The Court concluded that the Board's decision was arbitrary and capricious and violated the Administrative Procedure Act's requirement that rulings be based on "reasoned decisionmaking."

The decision is a reminder that federal courts expect administrative regularity from military adjudicative bodies whose decisions affect procedural and substantive due process rights.

Two topics that were not in the opinion:

First, no mention of judicial deference to military decision-making. The Court here reviewed an administrative process in the Pentagon, not an action in a combat zone. This case also involves due process rights outside the well-established scheme of judicial review of criminal trials brought under the Uniform Code of Military Justice. Military administrative boards should be on notice: Article III courts may have the final say for their cases.

Second, the D.C. Circuit's opinion did not even need to unsheathe here its powerful line of authorities regarding expungement as an equitable remedy for government error. See Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 537 (D.C. Cir. 2015) ("expungement of government records is an equitable remedy that may be available under certain circumstances to vindicate constitutional and statutory rights."). Instead the Court reviewed the issues as the Board saw them using the Board's own standards.

The case was decided by Judges Tatel, Pillard, and Wilkins. Opinion by Judge Pillard.