In my blog last week (link) we discussed how military members can sue the military under the Tucker Act when they're denied monies based upon some contractual-based theory (e.g., denial of pay or basic allowance for housing (BAH)). Like the Tucker Act, another waiver of sovereign immunity is the Administrative Procedures Act (APA), enacted by 5 U.S.C. § 701, et seq. This type of lawsuit is designed to challenge a final agency decision as being arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, aimed at having the decision set aside.

How Does the APA Work?

The APA is an option of last resort when there is no other adequate remedy at law available. If the Tucker act or some other legal theory is a viable basis to pursue a claim against the United States, then suing under the APA would be improper and could subject the lawsuit to being dismissed. Also, when desiring to pursue an APA claim, it is generally required that all available administrative remedies have been exhausted before filing suit, as this could lead to another basis for having the lawsuit dismissed.

However, if the APA is the right course of action, it can be filed in any federal district court across the country, based upon the appropriate venue for where the wrong occurred. Like the Tucker act, the APA also has a six-year statute of limitations. However, pursuant to 28 U.S.C. § 2401, this limitations period is less restrictive than under the Tucker act, and runs from when the final agency decision is made, not from when the initial wrong that is being challenged occurred.

An Example of an APA Claim

To provide some clarity, here's an example of when an APA claim may be viable. A Lieutenant Colonel (O-5) is in his window for promotion consideration to Colonel (O-6), and his leadership must submit a promotion recommendation form (PRF) which ranks him among his peers. He is ranked the # 1 of 10 O-5s on the PRF that he is presented. Later, a new PRF is accomplished by his leadership which changes his ranking to be the # 2 of 10 O-5s, but he is not presented with this updated PRF and is not given an opportunity to make comment to the promotion board about this change, despite the fact that agency regulation makes these procedural requirements. Ultimately, the O-5 is passed over for O-6. Subsequent to this decision, the O-5 appeals to the Board for Correction of Military Records (BCMR) citing the deficiencies in the process and challenges the decision to not promote him to O-6. The BCMR issues a final agency decision denying the O-5 his appeal, ignoring the fact that the agency's regulation mandated certain procedural steps that were not followed.

An example like this would permit the O-5 to file a lawsuit in federal court under the APA. Here, the O-5 exhausted his administrative remedies by appealing to the BCMR. The BCMR's decision to deny his appeal is what would be challenged, claiming that it was arbitrary and capricious for the BCMR to deny him relief when the agency regulation required certain procedural steps that were not followed. Under the APA, a court could intervene and set aside the decision of the BCMR, and could direct the BCMR to take specific action to cure the adjudged wrong. In this example, this could mean that the O-5 could be reconsidered for O-6 after the O-5 was given the opportunity to provide comment to the promotion board regarding his changed PRF.

All sorts of examples could qualify for an APA claim (e.g., denial of a combat medal, refusal of a medical retirement, etc. (see related article of recent APA lawsuits against Trump Administration)), but this promotion example highlights the general premise: 1) the promotion scenario is not a matter of right stemming from some contractual arrangement like the denial of pay is, so the Tucker act is not implicated here; 2) the challenge is focused on a decision made by the military that is deficient in some way, like the violation of a regulation or law; and 3) the administrative remedies available to have the issued corrected were exhausted.

If you or someone you know could have an issue involving an APA claim, give us a call.

Pat is one of the founding members of PLG. He handles litigation matters of all kinds in DC, Maryland, and Virginia (the DMV). His experience involves criminal and civil matters in both federal and state court. He previously defended the United States Air Force (USAF) in such matters discussed in this blog and brings this unique perspective to his clients' cases, anticipating the likely response by the military service who has been sued. Call 301-952-9000 to schedule a consultation. You can review Pat's bio here.

DISCLAIMER:  The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation.  No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements.  Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. This information is current as of January 15, 2020.