UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

OSCAR D. TORRES, on behalf of himself and others similarly situated,

Plaintiffs, Case No. l:21-cv-306-R~ v. ~fLED UNDER SEAL* [ f 6 '( '2/2. I CARLOS DEL TORO, in his official capacity as Secretary of the Navy,

Defendant.

MEMORANDUM OPINION

From time to time, servicemembers in the United States Armed Forces are separated from

service due to medical disability. The Department of Defense ("DoD'') and the Navy have created

a system, consisting of two primary parts, to evaluate Navy servicemembers for disabilities that

render them unfit. The first part is a "medical evaluation" of the servicemember for potentially I

unfitting conditions. If the Navy servicemember advances to the second part, he or she will be

subject to a "disability evaluation" and then, if applicable, a disability rating that affects benefits

upon separation. Between 2016 and 2018, the Navy implemented a new procedure to govern this

process, called the "Properly Referred Policy." That policy ensured that only conditions "properly

referred" by the medical evaluation phase would be considered during the disability evaluation

phase. The Navy rescinded the Properly Referred Policy in 2018. Sergeant Oscar Torres

subsequently filed this class-action lawsuit arguing that the Navy's policy unlawfully prevented

him and similarly situated servicemembers from receiving full consideration during their disability

evaluations. He seeks declaratory and injunctive relief under the Administrative Procedure Act

("APA"),

. After considering the administrative record ("AR"), the applicable law,

1 and the parties’ briefing, this Court will GRANT Mr. Torres’s motion for summary judgment and

DENY the Secretary of the Navy’s motion for summary judgment.

I. BACKGROUND

This Court has already addressed at length the background facts, procedural history, and

relevant statutes for this lawsuit. See Torres v. Del Toro, No. 1:21-cv-306 (RCL),

, *1–4 (D.D.C. Oct. 27, 2021), ECF No. 36. Therefore, the Court will only overview what

is most directly relevant to the Court’s decision on the cross-motions for summary judgment.

A. Overview of the Disability Evaluation System and Statutory Constraints

When a military servicemember is set to be discharged from service due to medical

disability, Chapter 61 of Title 10 of the U.S. Code provides the general guidelines for the process

that the servicemember is due. Most of the details, however, are defined through rules generated

by the Secretary of Defense and secretaries of the military services pursuant to Congressional

authorization. See

, 1222(c). The Disability Evaluation System (“DES”),

created by the DoD, governs the process for servicemembers facing separation or retirement due

to disability. AR 1942–1999. That system involves several steps that together determine whether

a servicemember is unfit to continue serving. See

The Navy has further built on the DoD’s

general DES framework with more specific procedures for servicemembers within the Navy’s

purview. See AR 2000–2300.

To enter the Navy’s DES, a servicemember is referred by a commanding or medical officer

for medical evaluation. See AR 1967–70, 2054–56. That referral is memorialized in Department

of Veterans Affairs (“VA”) Form 21-0819. AR 370–71, 2335. VA Form 21-0819 contains a

section for a referrer to list medical conditions for which the servicemember is being referred as

well as a section for the servicemember to list additional claimed conditions. AR 370–72, 2335.

2 From there, the servicemember has entered the DES process. A diagram of the usual DES

timeline is provided by the DoD.

AR 2371.

During the medical evaluation phase of the DES process, a Medical Evaluation Board

(“MEB”), comprising two or more physicians, assesses the servicemember’s individual

conditions and combination of conditions to decide whether to refer the servicemember to the

physical evaluation board (sometimes referred to as “PEB”) phase. See AR 1957–59, 2308; Pl.’s

Mem. 1. If a servicemember is referred by the MEB, the first step of the physical evaluation

board phase is an Informal Physical Evaluation Board (“IPEB”). AR 2371. The IPEB makes an

initial assessment of whether a servicemember is unfit for continued naval service. AR 1959,

3 2027. That determination is based on a records review, and the IPEB’s “preliminary finding[

will] become the PEB final determination upon a finding of Fit to continue naval service or upon

waiver of the hearing right by the member.” AR 2027 Servicemembers who are found unfit by

the IPEB may subsequently request a Formal Physical Evaluation Board (“FPEB”) hearing to

contest the findings, including the disability rating assigned to them. See AR 1959–60.

If either the IPEB or FPEB concludes that a servicemember is unfit for continued military

service, it will also assign a disability rating to the servicemember. The level of disability rating

determines the payment that a servicemember receives after separation. See Schmidt v. Spencer,

, 389 n.1 (D.D.C. 2018), aff’d sub nom. Schmidt v. McPherson,

(D.C. Cir. 2020). A 0% to 20% rating will result in a “medically separated” designation leading

to a one-time lump sum disability severance payment. See

, 1212. A 30% or

greater rating will result in a “medically retired” designation. See

§§ 1201, 1203. A medically

retired individual receives monthly disability payments as well as certain rights for the

servicemember and family members. See id. When determining a disability rating, the FPEB and

IPEB must consider what combination of the servicemember’s medical conditions, if any, merit a

combined disability rating. AR 1972–73.

Congress has also imposed both general and specific statutory requirements on the DES

process. For example, the relevant statute requires a “full and fair hearing” if requested by the

servicemember.

. Additionally, “[t]he Secretary concerned” in a determination

of disability is directed to consider “all medical conditions, whether individually or collectively,

that render the member unfit to perform the duties of the member’s office, grade, rank, or rating.”

10 U.S.C. § 1216a(b) (emphasis added). And of particular relevance to the Court’s decision is a

statutory requirement that Congress imposed to govern the conduct of physical evaluation boards.

4 Response to applications and appeals.--The Secretary of each military department shall ensure, in the case of any member of the armed forces appearing before a physical evaluation board under that Secretary’s supervision, that documents announcing a decision of the board in the case convey the findings and conclusions of the board in an orderly and itemized fashion with specific attention to each issue presented by the member in regard to that member’s case. The requirement under the preceding sentence applies to a case both during initial consideration and upon subsequent consideration due to appeal by the member or other circumstance.

(a) (emphases added).

B. The Navy’s Properly Referred Policy

The present lawsuit arises from the Navy’s Properly Referred Policy. The Navy created

the policy in order to limit the range of conditions that the IPEB and FPEB would need to consider

at the physical evaluation board phase of the DES. See AR 3, 20–24. Specifically, the Navy

instructed the IPEB and FPEB to “only assess conditions that have been properly referred by an

MEB.” AR 21. That meant medical conditions presented by a servicemember at the physical

evaluation board stage would “not be considered” unless the medical conditions were:

(i) specifically addressed in a MEB report, narrative summary, or Medical Addendum;

(ii) supported by a VA disability examination; and

(iii) appearing on a single Navy Medical Department (“NAVMED”) form (Form 6100) used by the MEB, dated and signed by the authority convening the disability review.

AR 21–22. As the Secretary explains, “[a]ny medical conditions that the MEB did not find to be

individually or collectively unfitting” would not be properly referred and thus “were not

considered by the PEB.” Def.’s Mem. 1. Therefore, conditions presented by a servicemember on

an early VA Form 21-0819 would not be considered by the IPEB or FPEB if the MEB decided not

to “properly refer” those conditions. See Def.’s Mem. 5–6; AR 54–56.

5 Oscar Torres’s case well illustrates the effect of the challenged policy. Mr. Torres’s DES

process began with a referral by his medical provider for chronic low back pain, sacroiliitis

(inflammation of the sacroiliac joint), and spondyloarthropathy (inflammatory rheumatic disease).

AR 380. In addition to those conditions identified by his referrer, Mr. Torres also added twenty-

five conditions to his VA Form 21-0819. AR 372. Mr. Torres was subsequently evaluated by the

MEB, which properly referred only two conditions to the physical evaluation board phase: sleep

apnea and spondyloarthropathy. AR 374–78. The remaining conditions were not referred because

they were found to be fitting. AR 375–77. Evaluating only those two referred conditions, the

IPEB rated him unfit based on spondyloarthropathy at a 10% disability level and found his sleep

apnea fitting. AR 141–42. Mr. Torres then requested an FPEB and argued that his combined

disability rating should be at least 30%—enabling the benefits associated with a medically retired

designation—because of his spondyloarthropathy alongside additional conditions previously

raised. AR 175, 282. Nevertheless, the FPEB assigned him a 10% rating for spondyloarthropathy

alone, because the other conditions “were not properly referred and were [thus] not considered by

the Formal PEB.” AR 137–40.

The Navy canceled the Properly Referred Policy in June 2018, without providing general

relief to those who claimed that the policy resulted in the wrongful denial of medical retirement.

AR 2, 5–6, 50; Def.’s Mem. 7.

C. Oscar Torres’s Class-Action Lawsuit

Mr. Torres filed this class-action lawsuit, under the APA, arguing that the Properly

Referred Process led to a “depriv[ation] of the disability retirement and pay and benefits to which

he is entitled” and to which similarly situated class members are entitled. Pl.’s Compl. ¶¶ 98, 102,

107–08, ECF No. 1.

6 In October 2021, this Court certified a class of the following people:

All veterans of the United States Navy and Marine Corps whose final Physical Evaluation Board occurred between September 12, 2016 and June 11, 2018 who claimed additional conditions in the applicable section of the joint DOD/VA claim form (VA Form 21- 0819)* that were not listed on the last-dated NA VMED Form 6100/1 signed by the Convening Authority and who did not receive a medical retirement through the IDES.

*For example, Section III, Item 11 on VA Form 21-0819 (Oct 2009); and Section III, Item 8 on VA Form 21-0819 (June 2009).

Torres,

at *9. Mr. Torres moved for summary judgment. Pl.’s Mot., ECF

No. 45; Pl.’s Mem. in Supp. (“Pl.’s Mem.”), ECF No. 50. The Secretary of the Navy (“the

Secretary”) filed a cross-motion for summary judgment. Def.’s Mot., ECF No. 46; Def.’s Mem.

in Supp. (“Def.’s Mem.”), ECF No. 47-1. Mr. Torres filed a reply in support of his summary

judgment motion and opposition to the defendant’s cross-motion for summary judgment. Pl.’s

Reply, ECF No. 58. And finally, the Secretary replied. Def.’s Reply, ECF No. 65. These motions

are now ripe for review.

II. LEGAL STANDARDS

When plaintiffs are “seeking review of an agency’s actions, the [typical summary

judgment] standard under Fed. R. Civ. P. 56(a) does not apply.” Beyond Nuclear v. Dep’t of

Energy,

(D.D.C. 2017). Instead, a court must decide “as a matter of law

whether the agency action is supported by the administrative record and otherwise consistent with

the APA standard of review.” Coe v. McHugh,

(D.D.C. 2013). Summary

judgment in such cases is favored. See Zemeka v. Holder,

(D.D.C. 2013).

And this Court “sits as an ‘appellate tribunal’” with the purpose of “answer[ing] the[] legal

questions based on the evidence in the administrative record.” Truitt v. Kendall,

167, 174 (D.D.C. 2021) (quoting Am. Bioscience, Inc. v. Thompson,

(D.C.

Cir. 2001)).

The APA provides the bedrock principles and standards by which a court will review the

lawfulness of agency actions. See

. Under the APA, a court shall “hold unlawful

and set aside agency action, findings, and conclusions” that are, as plaintiffs 1 allege, “in excess of

statutory jurisdiction, authority, or limitations, or short of statutory right;”

§ 706(2)(C),

“without observance of procedure required by law;” id. § 706(2)(D), or “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” id. § 706(2)(A).

“[C]laims that [agency action or] challenged regulations are in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right [are] reviewed under the well-

known Chevron framework.” Ass’n of Priv. Sector Colleges & Universities v. Duncan,

(D.C. Cir. 2012) (internal quotation marks and citation omitted) (citing Chevron U.S.A.

Inc. v. Nat. Res. Def. Council, Inc.,

(1984)); see also Children’s Hosp. Ass’n of Texas

v. Azar,

(D.C. Cir. 2019). Under Chevron, a court will generally first consider

whether a statute is ambiguous and, if it is ambiguous, whether the agency has provided a

reasonable interpretation of the statute’s meaning. See Chevron, 467 U.S. at 842–43.

When agency action is challenged as being “without observance of procedure required by

law,”

(2)(D), a court must determine whether the action challenged was in

accordance with procedural regulations and statutory requirements. See Nat’l Ass’n of

Broadcasters v. Copyright Royalty Tribunal,

, 384–85 (D.C. Cir. 1982).

Finally, under the arbitrary and capricious standard, a court reviews an agency’s reasoning

in a way that is “narrow and a court is not to substitute its judgment for that of the agency.” Motor

1 For ease of reference, this Court will refer to Mr. Torres and the class members collectively as “plaintiffs.”

8 Vehicle Mfrs. Ass’n v. State Farm,

(1983); Jackson v. Mabus,

(D.C. Cir. 2015); Stewart v. Spencer, 344 F. Supp. 3d. 147, 153 (D.D.C. 2018) (suggesting that

the Navy is owed an even more deferential standard of review for its reasoning), aff’d sub nom.

Stewart v. McPherson,

(D.C. Cir. 2020)). However, when the government violates

a statutory mandate, it has definitionally failed to act in accordance with law and its action should

be set aside. See E. Band of Cherokee Indians v. Dep’t of the Interior,

, 97

(D.D.C. 2021) (“Agency action is obviously ‘not in accordance with law’ if it violates some extant

federal statute or regulation.”), appeal dismissed, No. 21-5114,

(D.C. Cir. Jan.

5, 2022).

Here, all three avenues for review of the Properly Referred Policy boil down to a basic

question: did the Secretary comply with statutory requirements set by Congress?

III. DISCUSSION

Plaintiffs argue that the Navy’s application of the Properly Referred Policy failed to comply

with several statutory requirements, including

(a), which sets forth specific

procedures that a “physical evaluation board” must follow. The Court’s analysis begins and ends

there. § 1222(a)’s command unambiguously conflicts with the procedure plaintiffs were provided

under the Properly Referred Policy. Accordingly, the Court will set aside the physical evaluation

board decisions for each class member.

A. The Properly Referred Policy Violated § 1222(a)

When plaintiffs challenge the lawfulness of an agency policy or action pursuant to a

statutory directive, the reviewing court will often apply Chevron deference as part of its analysis.

See Ass’n of Priv. Sector Colleges & Universities,

. The Secretary does not argue

for Chevron deference in his briefing, although that does not necessarily deprive him of such

deference. See SoundExchange, Inc. v. Copyright Royalty Bd.,

(D.C. Cir. 2018).

9 But “[a court] need not decide whether Chevron deference applies []when the relevant terms []read

in context[] are unambiguous.” 2 Truck Trailer Manufacturers Ass’n v. EPA,

, 1201

& n.1 (D.C. Cir. 2021). A statute is unambiguous when “the intent of Congress is clear.” Chevron,

. Whether Congress unambiguously expressed its intent can be resolved by

reference to “the statute’s text, structure, and context.” Truck Trailer Manufacturers Ass’n,

.

The statute in question stems from the John Warner National Defense Authorization Act

for Fiscal Year 2007, through which Congress added “Procedural Requirements” for “[p]hysical

evaluation boards.” Pub. L. No. 109–364, § 597,

(2006). That statute requires “in

the case of any member of the armed forces appearing before a physical evaluation board . . . that

documents announcing a decision of the board in the case convey the findings and conclusions of

the board in an orderly and itemized fashion with specific attention to each issue presented by the

[service]member in regard to that member’s case.”

(a) (emphasis added); see

Pl.’s Mem. 20; Pl.’s Reply 5. Furthermore, that “requirement . . . applies to a case both during

initial consideration and upon subsequent consideration due to appeal by the member or other

circumstance.”

(a).

The statute is unambiguous. It directs the Secretary of the Navy, like the secretary of every

other military department, to ensure that decisions of “a physical evaluation board . . . convey the

findings and conclusions of the board in an orderly and itemized fashion with specific attention to

2 For additional reasons, it is unlikely that the Secretary could receive Chevron deference on this issue. See, e.g., Kaufman v. Nielsen,

(D.C. Cir. 2018) (“[W]e generally do not apply Chevron deference when the statute in question is administered by multiple agencies.”); Dubois v. U.S. Dep’t of Agric.,

, 1285 n.15 (1st Cir. 1996) (“We note that the two-step process articulated in [Chevron] does not apply here, because we are not reviewing an agency’s interpretation of the statute that it was directed to enforce.”). Furthermore, it is not clear that any of the relevant agency action or policies here were “promulgated in the exercise of []authority” that was “delegated authority to the agency” pursuant to, or related to, § 1222(a). See Kaufman,

(internal quotation marks omitted) (quoting Gonzales v. Oregon,

, 255–56 (2006)).

10 each issue presented by the member in regard to that member’s case.”

The Properly Referred

Policy, by contrast, ensured that no physical evaluation board, formal or informal, would pay

specific attention to each issue presented by a servicemember. A condition intentionally presented

by a servicemember, but not properly referred by the MEB, would simply

“not be considered” by the relevant physical evaluation board. AR 20–24.

Each plaintiff here presented at least one condition on VA Form 21-0819 that was not

properly referred by the MEB. See Torres,

at *9; see, e.g., AR 140. The

unreferred conditions “were not considered by the PEB because they were not ‘properly referred’

by the MEB.” See Def.’s Mem. 1. Mr. Torres’s case helps to illustrate the result of this process.

“[T]he PEB properly limited review to Mr. Torres’s two MEB-referred conditions.”

.

And, in accordance with that limited review, the FPEB’s formal rationale in this case stated that

“[t]he Board determined BILATERAL PLANTAR FASCIITIS, LEFT ANKLE CONDITION,

and RIGHT ANKLE CONDITION were not properly referred and were not considered by the

Formal PEB.” AR 140. Therefore, by design, the Properly Referred Policy ensured that neither

the IPEB nor the FPEB gave specific attention, in an orderly and itemized fashion, to each issue

presented by Mr. Torres and the other plaintiffs. 3

Indeed, the Secretary does not argue that the IPEB and FPEB, standing alone, provided

specific attention within the requirement of § 1222(a). Instead, he claims that the IPEB and FPEB

did not need to “take into account all medical conditions” because the MEB had already done so.

See Def.’s Mem. 1 (quoting 10 U.S.C. § 1216a(b)). The Secretary posits that “the MEB is ‘a

physical evaluation board under th[e] Secretary’s supervision’ that ‘convey[s] the findings and

3 Given that the statute is unambiguous, the mere fact that there is statutory authority to generate regulations cannot save the Navy’s Properly Referred Policy. See

(a);

§ 1222(c)(1). The power to promulgate never overcomes clear statutory text. See Bergman v. Paulson,

(D.D.C. 2008) (“It is hornbook law that a regulation that is clearly inconsistent with the plain meaning of a statute is invalid.”).

11 conclusions of the board in an orderly and itemized fashion with specific attention to each issue

presented by the member in regard to that member’s case.’” Id. at 15 (alternations in original)

(quoting

(a)). Then, “because the MEB had already addressed all conditions, the

PEB was not required to reissue findings and conclusions for non-referred conditions.”

(emphasis in the original).

The Secretary’s argument rests on two propositions: first, that the MEB is a physical

evaluation board under the Secretary’s supervision; and second, that, because the MEB is a

physical evaluation board, its review of each issue presented satisfied § 1222(a).

In arguing that the MEB is a physical evaluation board—despite there being a separate

entity specifically called a physical evaluation board—the Secretary simply cites § 1222(a) and

pages 374 through 378 of the administrative record. See Def.’s Mem. 15. But § 1222(a) never

uses the term “Medical Evaluation Board” or “MEB” and merely refers to “a physical evaluation

board under that Secretary’s supervision.” And the referenced pages of the administrative record

solely contain Mr. Torres’s MEB Narrative Summary. It is unclear why either of those sources

would demonstrate that the MEB is a physical evaluation board under the statute.

Moreover, the MEB does not perform the same functions as a physical evaluation board.

In fact, DoD documents specifically differentiate the two. Under DoD Directive 1332.18, the DES

consists of different parts. One is “[m]edical evaluation to include the MEB, impartial medical

reviews, and rebuttal.” AR 1956. Another is “[d]isability evaluation to include the PEB and

appellate review, counseling, case management, and final disposition.” Id. This difference can be

seen clearly in the previously referenced DoD timeline chart for the process. See infra Part I.A.;

AR 2371. The separation between the “Medical Evaluation Board Phase” and the “Physical

Evaluation Board Phase” is starkly presented in beige and brown. AR 2371; see also Def.’s Mem.

12 4 (noting that “the Navy’s disability rating process has three phases” and separating out the MEB

phase from the physical evaluation board phase).

There is a conceptual distinction that underlies this illustrative distinction. As the Secretary

explains, “[t]he MEB’s purpose is to review the service member’s referred and claimed conditions

and send potentially unfitting conditions to the PEB.” Def.’s Mem. 4. The MEB will “state

whether each condition is cause for referral to a PEB.” AR 1959 (emphasis added). By contrast,

“PEBs determine the fitness of Service members with medical conditions to perform their military

duties and . . . their eligibility for benefits.” Id. Therefore, “the PEB’s function is distinct from

the MEB.” Def.’s Mem. 5. And this separation is what made the Navy’s creation of the Properly

Referred Policy plausible in the first place. The MEB was made a gatekeeper for referral to a

physical evaluation board. See Def.’s Mem. 8 (“The Secretary of Defense established the MEB as

the ‘gatekeeper’ for the PEB.” (quoting AR 57)); AR 1959. It is therefore a completely different

part of the DES. The MEB may generate a “referral to a PEB,” AR 1959, but it is not a physical

evaluation board.

Finally, if the DoD documents, the Secretary’s own briefing, and the conceptual

distinctions were not enough, Congress has subsequently made clear that the MEB is separate from

a physical evaluation board. In the National Defense Authorization Act for Fiscal Year 2013,

Congress created quality review requirements for the Secretary of Defense. Pub. L. No. 112–239,

§ 524,

(2013). In so doing, Congress directed the Secretary of Defense to

“standardize, assess, and monitor the quality assurance programs of the military departments” for

“(1) Medical Evaluation Boards. (2) Physical Evaluation Boards.” Id.; see also

(“The

objectives of the quality assurance program shall be as follows: (1) To ensure accuracy and

consistency in the determinations and decisions of Medical Evaluation Boards and Physical

13 Evaluation Boards.”). Congress’s own separation of MEBs from physical evaluation boards, in

legislation passed before the Properly Referred Policy came about, “puts extra icing on a cake

already frosted.” Yates v. United States,

, 557 (2015) (Kagan, J., dissenting).

Because the MEB is not a physical evaluation board, the application of the Properly

Referred Policy to the plaintiffs in this action was unlawful. The class members here all “claimed

additional conditions” that went unaddressed by a physical evaluation board because they were

not properly referred. See Torres,

at *9; AR 140. Therefore, the “documents

announcing a decision of the [physical evaluation] board in the[ir] case[s]” did not “convey the

findings and conclusions of the board in an orderly and itemized fashion with specific attention to

each issue presented by the [service]member[s] in regard to that member’s case.” See

(a). As the FPEB decision in Mr. Torres’s case explained: “The Board determined [several

conditions raised by Mr. Torres] were not properly referred and were not considered by the Formal

PEB.” AR 140. Both the IPEB and FPEB did not consider the conditions raised by Mr. Torres,

nor give them special attention—just as they failed to do for at least one medical condition

presented by each class member in this action. See AR 20–24, 171; Def.’s Mem. 5 (“[B]oth the

IPEB and FPEB limit their findings and conclusions to the MEB-referred conditions.”). And

because the MEB is not a physical evaluation board, no opinion of a physical evaluation board

ever addressed, with specific attention, each issue raised by the servicemembers in this class. That

failure violated the unambiguous statutory requirement imposed by Congress. 4 Indeed,

§ 1222(a)’s language appears designed to prevent the exact policy the Navy implemented here.

4 Even if the MEB were a physical evaluation board, the Secretary’s argument would still fail. § 1222(a) requires that the “specific attention” requirement be applied during both the “initial consideration of a case” and “upon subsequent consideration due to appeal by the member or other circumstance.” Neither party pays that language much heed, but it speaks for itself. If the MEB is in fact a physical examination board, its role is to decide whether conditions should be referred because they are “potentially unfitting.” Def.’s Mem. 4; AR 1959, 2308. The IPEB and FPEB then provide

14 * * *

The creation of the Navy’s Properly Referred Policy was rooted in the noble goal of

efficient government administration. Nevertheless, that proper objective of good government must

yield in the face of explicit Congressional instruction. Congress made a choice about the

procedures due to the brave men and women in the United States Armed Forces. The Navy’s

Properly Referred Policy paid that instruction little heed and, as a result, thousands of

servicemembers were treated improperly. Because the application of the Properly Referred Policy

to the plaintiffs’ physical evaluation board decisions violated § 1222(a), this Court need not

consider their alternative arguments. The Secretary’s actions were unlawful under

(2)(A), (C), and (D).

B. The Physical Evaluation Board Decisions for Plaintiffs Must Be Vacated

Given that the Properly Referred Policy subjected these plaintiffs to an unlawful procedure,

the next step is to decide what remedy is appropriate. Absent extraordinary circumstances, a

district court reviewing agency action should set aside the action it has found unlawful and then

remand to the agency for next steps consistent with the clarified legal standard. Palisades Gen.

Hosp. Inc. v. Leavitt,

(D.C. Cir. 2005); N. Air Cargo v. USPS,

(D.C. Cir. 2012); see also Fed. Power Comm’n v. Idaho Power Co.,

(1952).

That principle stems from the special role “a district court reviewing a final agency action” plays

“as an appellate tribunal.” Palisades General Hosp. Inc.,

(internal quotation

marks omitted) (quoting Cnty. of Los Angeles v. Shalala,

, 1011 (D.C. Cir. 1999)).

subsequent consideration of the servicemember’s case. And under § 1222(a), those subsequent physical evaluation boards are bound by the same “specific attention” requirement as the MEB. Merely referring back to the findings of a prior physical evaluation board—if the MEB were indeed one—is not “an orderly and itemized fashion with specific attention to each issue presented by the member in regard to that member’s case.” See

(a).

15 Since the Properly Referred Policy violated § 1222(a)’s requirement for the “documents

announcing a decision of the board in [a servicemember’s] case” this Court will order that the

physical evaluation board decisions for each class member be set aside as unlawful. Arguing for

more, plaintiffs ask this Court to fashion an injunction to guarantee “members the procedural rights

they were always due.” Pl.’s Reply 14. They cite to two paths through which a Court might

properly enjoin a defendant-agency rather than merely set aside as unlawful the challenged actions.

First, when “a less drastic remedy is insufficient to redress the plaintiff’s injury.” Id. at 13. And

second, when “there is only one rational course for the agency to follow upon remand.” Id. For

the first path plaintiffs cite a government contracting case in which the court concluded that

recission and award of a disputed contract might be the only remedy that could truly satisfy

plaintiff’s injury. Pl.’s Reply 13 (citing Eco Tour Adventures, Inc. v. Zinke,

(D.D.C. 2017)). For the second, plaintiffs look to a case where plaintiffs in an immigration

matter were already under unlawful orders of removal, or were unlawfully removed, necessitating

immediate action. Pl.’s Reply 14 (citing Kiakombua v. Wolf,

, 57–58 (D.D.C.

2020), appeal dismissed sub nom. Kiakombua v. Mayorkas, No. 20-5372,

(D.C.

Cir. July 19, 2021)). Neither special circumstance, however, is applicable to this case.

Once this Court sets aside the defective physical evaluation board decisions, plaintiffs’

procedural injuries from the violation of § 1222(a) will be remedied. From there, of course, the

Navy must take new action for plaintiffs under the appropriate legal framework. See Part III.A.

This Court will trust—as courts do in the regular course of judicial review of agency actions—that

that the Secretary will properly follow Congress’s commands and Navy regulations to fashion a

remedial PEB process for the class members. And while it is without question that the Secretary

will need to follow the procedural constraints that bind him, there are indeed a range of different

16