PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1435

NATIONAL VETERANS LEGAL SERVICES PROGRAM,

Plaintiff - Appellant,

v.

UNITED STATES DEPARTMENT OF DEFENSE; LLOYD J. AUSTIN, III, in his official capacity as Secretary of Defense; JOHN E. WHITLEY, in his official capacity as Acting Secretary of the Army; THOMAS W. HARKER, in his official capacity as Acting Secretary of the Navy; JOHN P. ROTH, in his official capacity as Acting Secretary of the Air Force; ALEJANDRO N. MAYORKAS, in his official capacity as Secretary of Homeland Security,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Rossie David Alston, Jr., District Judge. (1:20-cv-00003-RDA-TCB)

Argued: December 9, 2020 Decided: March 11, 2021

Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Diaz joined.

ARGUED: Matthew Robert McGuire, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellant. Lauren Anne Wetzler, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees. ON BRIEF: George P. Sibley, III, J. Pierce Lamberson, Sarah C. Ingles, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, John E. Swords, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.

2 NIEMEYER, Circuit Judge:

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. Before being posted on the website, however, the decisions had to be redacted

so as to exclude “personally identifiable information.”

(a)(5). When

alerted in April 2019 to the fact that some posted decisions contained personally

identifiable information, the DoD temporarily removed all decisions from the website and,

since then, has been redacting and restoring them to the site, but arguably at a slow pace.

Indeed, some pre-2019 decisions have yet to be reposted.

National Veterans Legal Services Program (“NVLSP”), a nonprofit organization

that assists veterans to correct military records in order to secure benefits, commenced this

action against the DoD and the Secretaries of the military departments to require them to

fulfill the statutory mandate of publishing all decisions and to do so promptly. It sought a

judgment declaring that the removal of the decisions, the failure to repost them, and the

failure to properly index them was the “unlawful withholding of an agency action” that

could be remedied under the Administrative Procedure Act, and it sought injunctive relief

requiring the defendants to “immediately restore” the decisions, to post new ones within

60 days, and to “maintain an index of decisions that allows the user to easily find relevant

decisions.”

Following a hearing on NVLSP’s motion for a preliminary injunction and the

defendants’ motion to dismiss the action for lack of jurisdiction, the district court granted

3 the defendants’ motion, ruling that NVLSP lacked Article III standing to bring the action

and also that the DoD’s conduct was not judicially reviewable under the Administrative

Procedure Act (“APA”),

. Without jurisdiction, the court concluded, it had

to “deny Plaintiff’s Preliminary Injunction Motion.”

We affirm. While we conclude that NVLSP has standing to bring this action, we

nonetheless agree with the district court that it lacked subject matter jurisdiction. NVLSP

challenges the defendants’ ongoing actions in maintaining and managing the website, not

any final agency action understood as a discrete agency determination of rights and

obligations, as necessary to give a court subject matter jurisdiction under the APA.

I

Congress has created a system by which members of the armed forces can request

the Secretary of a military department to correct their military records or to remove an

injustice, and it has authorized each Secretary to act through boards within the military

department to address the request and render a decision. The Discharge Review Boards

(“DRB”) were established to review less-than-honorable discharge classifications, and the

Boards for Correction of Military/Naval Records (“BCMR”) were established for when a

DRB denies individual relief. Under current law, each final decision of a Board must be

made available to the public by posting it on an Internet website, although each decision

must be redacted to remove “all personally identifiable information.”

(a)(5); see also

(l).

4 Before 2004, decisions were published in paper form in a physical location known

as a Board “Reading Room,” and they had to be “indexed” to make them “usable” to the

public. In 2004, however, the DoD abandoned the physical location and indexing in favor

of the DoD Electronic Reading Room website, <http://boards.af.mil>, where all decisions

since 1996 were posted and made searchable. DoD Directive 1332.41.4.3.5 (Mar. 8, 2004).

And in 2016, Congress codified the use of the website:

Each final decision of a board under this subsection shall be made available to the public in electronic form on a centralized Internet website. In any decision so made available to the public there shall be redacted all personally identifiable information.

(a)(5).

In April 2019, when a military department discovered that a decision published on

the Electronic Reading Room website contained personally identifiable information, a

randomized review of other decisions was conducted, and that review revealed additional

decisions containing personally identifiable information. As a consequence, on April 26,

2019, the DoD removed all 245,000 decisions on the Electronic Reading Room website

from public access and posted a notice that the “decisional documents normally published

in the Department of Defense Reading Room have been temporarily removed to conduct a

quality assurance review. We will update this webpage when we have a better estimate[]

of when the decisional documents will again be available.” The public could, however,

request and receive copies of specific decisions while this review was being conducted.

While a portion of the review was conducted by computer, that proved inadequate for some

types of personally identifiable information, and thereafter decisions had to be reviewed

5 manually, a laborious and time-consuming task. When NVLSP commenced this action,

no decisions had yet been reposted, but by a few weeks later, 25,472 had been reposted,

and as of June 2020, 138,192 had been reposted.

NVLSP commenced this action in January 2020 to challenge the delay. It alleged

that although the removal of decisions was purportedly temporary, the defendants, as of

the commencement of the action, “ha[d] not republished the Boards’ decisions, [and] they

ha[d] not provided an estimate of when they will be republished.” It asserted that “[t]his

lack of information” undermined its ability to perform its mission. For relief, NVLSP

requested a declaratory judgment that the DoD conduct “is unlawful withholding of an

agency action,” as well as a preliminary and a permanent injunction requiring the DoD to

restore the decisions to the website “immediately” and to “maintain an index of decisions

that allows users to easily find relevant decisions.”

The DoD filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)

on the grounds that NVLSP lacked standing to sue and that NVLSP’s complaint did not

challenge “agency action” made reviewable by the APA.

The district court granted the DoD’s motion to dismiss and, as a consequence,

denied NVLSP’s motion for a preliminary injunction. It found that NVLSP had not

suffered an “injury in fact” necessary to confer Article III standing and also that the DoD’s

management of its database was not final agency action and therefore was not judicially

reviewable under the APA. The court observed that because the DoD had already restored

some of the decisions to the website, it understood NVLSP to be claiming that the DoD

was “not working fast enough,” a claim that would require the court to adopt a

6 “supervising” role over the DoD’s day-to-day operations. The court characterized

NVLSP’s challenge as an unreviewable “‘broad programmatic attack’ on the government’s

operations.” (Quoting City of New York v. U.S. Dep’t of Def.,

(4th Cir.

2019)).

From the district court’s judgment dated April 2, 2020, NVLSP filed this appeal.

II

As an initial matter, the district court concluded that NVLSP’s complaint should be

dismissed because the organization lacked Article III standing. The court reasoned that

NVLSP failed to show “injury in fact” in failing to plead “any specific instance” in which

it was “effectively unable to fulfill its mission because of the lack of information that it

had.” NVLSP, however, contends that the district court erred in failing to recognize its

informational injury, citing Dreher v. Experian Information Solutions, Inc.,

(4th Cir. 2017) (citing Fed. Election Comm’n v. Akins,

(1998)).

In its complaint, NVLSP alleged that “its mission is to assist veterans in effectively

applying to a DRB or BCMR to correct errors or injustices contained in their military

records,” and that it “accomplishes its mission in part by screening the merit of the cases

of veterans who wish to apply to a DRB or BCMR” and “pairing veterans with potentially

meritorious cases.” It also alleged that it publishes a 2,200-page Veterans Benefits Manual,

which relies heavily on the Boards’ decisions. It claimed that “[a]ccess to Board decisions

is essential for [its] daily operations . . . , because the effectiveness of [its] services depends

7 on understanding the reasoning behind the Boards’ decisions.” As it stated in the

complaint:

Without access to previous Board decisions, NVLSP cannot evaluate the potential success of appeals or develop strategies to assist veterans in filing their applications to the Boards. This lack of information prevents NVLSP from effectively carrying out its mission of advocating for veterans so that they may receive the benefits they deserve.

We conclude that the informational injury alleged by NVLSP is just the kind of

injury found to have established standing in Akins. In Akins, the Court held that voters had

standing to sue the Federal Election Commission to require it to disclose contributions

made to an organization under its jurisdiction and distributions made by that organization

to candidates for office. 524 U.S. at 13–14. It explained that the voters suffered an “injury

in fact” consisting of “their inability to obtain information.”

. Accepting the

voters’ claims that the information would “help them . . . evaluate candidates for public

office,” the Court stated that “a plaintiff suffers an ‘injury in fact’ when the plaintiff fails

to obtain information which must be publicly disclosed pursuant to a statute.” Id.; see also

Dreher,

.

So it is here, and therefore, we reverse the district court’s ruling on standing.

III

The district court also dismissed NVLSP’s complaint for lack of subject matter

jurisdiction, concluding that the challenged conduct was not “final agency action” that the

APA makes judicially reviewable.

. NVLSP contends, however, that the

district court erred because the DoD, in removing and not reposting the Boards’ decisions

8 promptly, “breached its discrete, circumscribed obligation to publish the Boards’ decisions

to a searchable internet website, denying [it] the relief afforded by

(a)(5).”

At the outset, we recognize that “the APA waives the federal government’s

sovereign immunity for a limited set of suits” and that “sovereign immunity is jurisdictional

in nature.” City of New York,

(cleaned up). Thus, a court may entertain

suits against the federal government under the APA only within the scope of its waiver.

And the APA defines that scope of waiver to permit judicial review of only “final agency

action[s].”

. The jurisdictional question presented, therefore, is whether the

DoD’s conduct amounted to “final agency action” within the meaning of § 704.

Final agency action “is a term of art that does not include all [agency] conduct such

as, for example, constructing a building, operating a program, or performing a contract,”

but instead refers to an “agency’s [final] determination of rights and obligations whether

by rule, order, license, sanction, relief, or similar action.” Vill. of Bald Head Island v. U.S.

Army Corps of Eng’rs,

(4th Cir. 2013) (citing Bennett v. Spear,

, 177–78 (1997)). And each of the two components — agency action and finality of

agency action — narrows the scope of judicial review.

When authorizing review of “agency action,” the APA “does not provide judicial

review for everything done by an administrative agency.” Hearst Radio v. FCC,

(D.C. Cir. 1948). Rather, it defines “agency action” to include “the whole or a

part of an agency rule, order, license, sanction, relief, or the equivalent or the denial thereof,

or failure to act.”

(13). The Supreme Court has recognized that this

9 provision refers only to conduct that is “circumscribed” and “discrete.” Norton v. S. Utah

Wilderness Alliance (“SUWA”),

(2004). Thus,

[w]hen challenging agency action — whether it be a particular action or a failure to act altogether — the plaintiff must . . . identify specific and discrete governmental conduct, rather than launch a ‘broad programmatic attack’ on the government’s operations. This distinction between discrete acts, which are reviewable, and programmatic challenges, which are not, is vital to the APA’s conception of the separation of powers. Courts are well-suited to reviewing specific agency actions, such as rulemakings, orders, or denials. [They] are woefully ill-suited, however, to adjudicate generalized grievances asking [them] to improve an agency’s performance or operations.

City of New York,

(quoting SUWA,

).

For instance, the Supreme Court has repeatedly held that various aspects of the

Bureau of Land Management’s stewardship of public lands were insufficiently

circumscribed to constitute agency action under the APA, despite express statutory

mandates for such stewardship. SUWA, 542 U.S. at 66–67 (rejecting a challenge to the

Bureau’s permission of off-road vehicles on certain wilderness lands despite the Bureau’s

general statutory obligation not to impair that wilderness); Lujan v. Nat’l Wildlife Fed’n,

(1990) (stating that plaintiffs “cannot seek wholesale improvement of

[the Bureau’s] program by court decree, rather than in the offices of the Department or the

halls of Congress, where programmatic improvements are normally made”). Similarly, we

dismissed a lawsuit against the DoD for its alleged failure to share promptly with the

Attorney General information that is used to run background checks on purchasers of

firearms. See City of New York, 913 F.3d at 432–33. There, the plaintiffs argued that the

DoD had failed to fully satisfy a clear statutory obligation to share information. Id. at 429.

But we noted that the DoD, far from denying its obligation to share information, was

10 “engaged in extensive efforts to increase its compliance.” Id. at 433. We thus held that

the plaintiff’s claim seeking to improve the speed or quality of that performance did not

challenge conduct subject to the APA’s judicial review provisions, but instead would have

forced a court “to engage in day-to-day oversight” of the DoD’s compliance effort. Id. at

431.

As for the requirement of finality — i.e., the requirement of “final agency action”

— the Supreme Court has stated that to be “final” the action must first “mark the

consummation of the agency’s decisionmaking process — it must not be of a merely

tentative or interlocutory nature. And second, the action must be one by which rights or

obligations have been determined, or from which legal consequences will flow.” U.S.

Army Corps of Eng’rs v. Hawkes Co.,

(2016) (emphasis added)

(quoting Bennett, 520 U.S. at 177–78). Thus, in Village of Bald Head Island, we held that

the plaintiff’s challenge of the Corps of Engineers’s failure to adequately protect and

renourish beaches, which it had undertaken to do, was not a determination that could be

considered final agency action. 714 F.3d at 194–95; see also City of New York, 913 F.3d

at 431–32.

With this understanding of “agency action” and “final agency action,” we readily

conclude that NVLSP’s challenge to the DoD’s conduct in this case is not judicially

reviewable.

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

11 (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

(a)(5) (requiring redaction of decisions to remove “all personally identifiable

information”); see also

(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.”

NVLSP’s position appears to recognize this state of affairs. In its complaint, filed

when no decisions had yet been reposted, NVLSP requested injunctive relief requiring the

DoD to “immediately restore” all decisions, to post outstanding decisions “within 60 days,”

and thereafter, to “continue . . . publish[ing] all decisions of the Boards electronically

within a reasonable time.” In short, its challenge amounts to a complaint that the DoD was

not adequately carrying out its duties of maintaining the Electronic Reading Room website

for public access and timely posting decisions on that website.

12 Thus, NVLSP does no more in this case than challenge the adequacy of the DoD’s

“performance” of its statutory duty, not any DoD “determination” of rights and obligations,

Vill. of Bald Head Island, 714 F.3d at 193–94; its challenge is a “programmatic attack” on

DoD’s “day-to-day agency management,” City of New York,

(quoting

SUWA,

). This is precisely the type of challenge over which courts have

no jurisdiction. It does not focus on a DoD determination that is the “consummation of the

[DoD’s] decisionmaking process.” Bennett,

(cleaned up); Invention

Submission Corp. v. Rogan,

(4th Cir. 2004). Rather, it broadly

complains of DoD mismanagement. Thus, the district court correctly dismissed NVLSP’s

complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction.

NVLSP argues that its complaint, filed before the DoD reposted any decisions,

challenges only the discrete removal of the 245,000 decisions from the Electronic Reading

Room website. It also notes that the DoD’s motion to dismiss the complaint was a facial

challenge, relying on only the allegations of the complaint. Thus, relying on Wikimedia

Foundation v. National Security Agency,

(4th Cir. 2017) (providing the

standards for resolving facial and factual challenges to standing), it seeks to cabin our

review to the conduct alleged in the complaint.

But this effort gains NVLSP little. For one thing, the DoD’s determination to

remove all decisions from the website on a temporary basis to conform with the statutory

mandate to exclude personal information still was not a determination of rights and

13 obligations that would amount to final agency action. It was instead a decision in

furtherance of ongoing website management.

More importantly, the parties presented much more information to the district court

on which the court could rely to rule than the mere allegations of the complaint. Before

the DoD filed its motion to dismiss, NVLSP filed a motion for a preliminary injunction

supported by numerous affidavits and exhibits, which provided the court with a record of

facts and arguments far beyond those alleged in the complaint. And when the DoD filed

its Rule 12(b)(1) motion alleging a lack of subject matter jurisdiction, it provided the court

with another affidavit and further exhibits. Thus, when the court heard both motions

simultaneously, it had a fulsome record on which to base its rulings. Neither party

indicated that it desired to present anything further. Accordingly, at the hearing on the

motions, the court properly relied on the whole record before it in ruling. In these

circumstances, we are not required to blinker ourselves from the realities of the case, as

NVLSP would have us do.

* * *

For the reasons given, we affirm the district court’s ruling that it lacked subject

matter jurisdiction.

AFFIRMED

14