Doyon v. United States

In the United States Court of Federal Claims
No. 19-1964C
Filed: January 13, 2021
NOT FOR PUBLICATION

)
ROBERT L. DOYON, )
) RCFC 12(b)(1); Subject-Matter
Plaintiff, ) Jurisdiction; RCFC 12(b)(6); Failure To
) State A Claim; Military Pay Act; 10
v. ) U.S.C. § 204; Military Disability
) Retirement Pay Act; 10 U.S.C. § 1201.
THE UNITED STATES, )
)
Defendant. )
)

Nathaniel McPherson, Counsel of Record, Latham & Watkins, Boston, MA, for plaintiff.

Jana Moses, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman, Jr., Director, Ethan P. Davis, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; Lt.
Clayton McCarl, Litigation Attorney, United States Navy, JAG Corps, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, Robert L. Doyon, brings this military pay action challenging the Board for
Correction of Naval Records’ (“BCNR”) decision to deny his application for the correction of his
military records to reflect that he was unfit for duty and medically retired for psychosis or
psychoneuroses associated with post-traumatic stress disorder (“PTSD”). See generally Compl.
As relief, plaintiff seeks, among other things, an order that his military records be corrected,
military disability retirement pay and other pay. Id. at Prayer for Relief.

The government has moved to dismiss this matter for lack of subject-matter jurisdiction
and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and
(6) of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def.
Mot. The parties have also filed cross-motions for judgment upon the administrative record,
pursuant to RCFC 52.1. See generally id.; Pl. Mot. In addition, plaintiff has moved to
supplement the administrative record. Pl. Mot. to Supp. For the reasons set forth below, the
Court: (1) GRANTS-in-PART the government’s motion to dismiss; (2) DENIES plaintiff’s
motion to supplement the administrative record; (3) GRANTS the government’s motion for
judgment upon the administrative record; and (4) DENIES plaintiff’s cross-motion for judgment
upon the administrative record.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

Plaintiff, Robert L. Doyon, is a former service member in the United States Navy
(“Navy”). Compl. at ¶ 2. In this military pay action, plaintiff challenges the BCNR’s decision to
deny his application for the correction of his military records to reflect that he was unfit for duty
and medically retired for psychosis or psychoneuroses associated with PTSD. Id. at ¶ 6.

Specifically, plaintiff asserts three counts against the government in the complaint. First,
plaintiff alleges in Count I of the complaint that the BCNR’s alleged refusal to apply applicable
Department of Defense guidance in considering his application for the correction of his military
records was arbitrary, capricious, an abuse of discretion and contrary to law. Id. at ¶¶ 70-75.
Second, plaintiff alleges in Count II of the complaint that the BCNR’s rejection of his application
for the correction of his military records was arbitrary, capricious, unsupported by substantial
evidence and contrary to law. Id. at ¶¶ 76-78. Lastly, plaintiff alleges in Count III of the
complaint that the BCNR failed to afford him procedural due process in violation of the Due
Process Clause of the Fifth Amendment to the Constitution. Id. at ¶¶ 79-89. As relief, plaintiff
seeks, among other things, an order that his military records be corrected, military disability
retirement pay and other pay. Id. at Prayer for Relief.

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The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); the
administrative record (“AR”); the government’s motion to dismiss and motion for judgment upon the
administrative record (“Def. Mot.”); plaintiff’s response and opposition to the government’s motion to
dismiss and cross-motion for judgment upon the administrative record (“Pl. Mot.”); plaintiff’s motion to
supplement the administrative record (“Pl. Mot. to Supp.”); the government’s response and opposition to
plaintiff’s cross-motion for judgment upon the administrative record and plaintiff’s motion to supplement
the administrative record and reply in support of its motion to dismiss and motion for judgment upon the
administrative record (“Def. Resp.”); and plaintiff’s reply in support of his cross-motion for judgment
upon the administrative record and motion to supplement the administrative record (“Pl. Reply”). Except
where otherwise noted, all facts recited herein are undisputed.

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 1. Plaintiff’s Military Service And Discharge

As background, plaintiff is a Vietnam War veteran who served in the Navy from March
17, 1966, to November 21, 1968. Id. at ¶¶ 2, 17; AR 0054. During his military service, plaintiff
was assigned to the U.S.S. Intrepid and he advanced to the rank of Airman. Compl. at ¶¶ 18-19.
Plaintiff received several medals and commendations—including the Vietnam Service Medal
(Bronze Star), the Vietnam Campaign Medal, and the National Defense Service Medal—during
his service in the Navy. Id. at ¶ 20.

On July 29, 1967, a missile on an airplane located on the U.S.S. Forrestal accidently
detonated causing an explosion and fire that eventually resulted in more than 130 deaths and 160
injuries. Id. at ¶¶ 2, 23. Plaintiff witnessed the immediate aftermath of the explosion and fire.
Id.

On October 23, 1967, four members of the U.S.S. Intrepid went Absent without Leave
(“AWOL”). Id. at ¶ 24. Because plaintiff was friendly with two of the deserters, he was
harassed and threatened by his shipmates. Id. In April 1968, plaintiff’s parents wrote to Senator
Edward Kennedy, to express concerns about his mental health. Id. at ¶ 25.

In May 1968, plaintiff went on unauthorized absence for two days. Id. at ¶ 26. Upon his
return to the Intrepid, plaintiff was referred to the ship’s sick bay because of his “inability to get
along with his peers, his recent mental agitation and deteriorating work habits, and his expression
of admiration for several of 1967’s famous four deserters.” Id. at ¶ 28 After being admitted to
sick bay, plaintiff was sedated with Thorazine. Id.

On August 16, 1968, plaintiff was transferred to Naval Base Subic Bay for further
evaluation. Id. at ¶ 29. Plaintiff returned to duty aboard the Intrepid on August 31, 1968. Id. at
¶ 32. A medical evaluation performed at Subic Bay in August 1968 diagnosed plaintiff with
“passive aggressive personality disorder.” Id. at ¶ 30. Thereafter, on September 23, 1968,
plaintiff witnessed a fatal plane crash while on duty. Id. at ¶ 36.

On September 26, 1968, plaintiff’s commanding officer recommended that the Navy
separate him from military service for unsuitability citing his diagnosis of passive aggressive
personality disorder. AR0231-32. A subsequent psychiatric evaluation conducted on October
28, 1968, changed plaintiff’s diagnosis to “Emotionally Unstable Personality #3210, with noted

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paranoid trait in his personality.” Compl. at ¶ 38. And so, plaintiff was discharged with an
honorable characterization of service for unsuitability effective on November 21, 1968.
AR0054.

2. Plaintiff’s VA Benefits Claim

In December 2013, plaintiff filed an application for disability compensation with the
Department of Veterans Affairs (“VA”) for PTSD. AR0356. In connection with this
application, a VA psychiatrist diagnosed plaintiff with PTSD in June 2014. AR0064. The VA
psychiatrist opined that plaintiff had experienced stressors in service, including witnessing a fatal
plane crash and a sinking ship incident that resulted in multiple casualties. AR0067, AR0072.
And so, on September 16, 2014, the VA granted plaintiff’s application for disability
compensation for PTSD, assigning a 50 percent disability rating effective December 9, 2013.
AR0088-091. On November 18, 2015, the VA granted plaintiff’s claim for an increased rating
for his service-connected PTSD, assigning a 70 percent disability rating effective August 27,
2015. AR0093-096.

3. The Hagel And Kurta Memoranda

On September 3, 2014, former Secretary of Defense Charles Hagel issued a
memorandum entitled “Supplemental Guidance to Military Boards for Correction of
Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post
Traumatic Stress Disorder” (the “Hagel Memorandum”). AR0184-187. The Hagel
Memorandum recognizes the attention that “has been focused upon the petitions of Vietnam
veterans to Military Department Boards for Correction of Military/Naval Records (BCM/NR) for
the purposes of upgrading their discharges based on claims of previously unrecognized Post
Traumatic Stress Disorder (PTSD).” AR0184. The Hagel Memorandum also states that its
purpose is to “help ensure consistency across the Services,” by providing supplemental policy
guidance for military correction boards on such applications. Id.

In this regard, the Hagel Memorandum requires that military boards give liberal
consideration to petitions submitted by veterans who assert that PTSD or PTSD-related
conditions “might have mitigated the misconduct that caused [their] under other than honorable
conditions characterization of service.” AR0186. The Hagel Memorandum also directs the
military correction boards to timely consider these petitions and to liberally waive any time

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limits that may have prevented their review. Id. In 2016, this “liberal consideration” standard
was codified into law and military review boards must review with liberal consideration a
veteran’s claim “that post-traumatic stress disorder or traumatic brain injury potentially
contributed to the circumstances resulting in the discharge or dismissal or to the original
characterization of the claimant’s discharge or dismissal.” 10 U.S.C. § 1552(h)(2)(B); 10 U.S.C.
§ 1553(d)(3)(A)(ii).

On August 25, 2017, Undersecretary of Defense Anthony Kurta issued a memorandum
(the “Kurta Memorandum”) which provides additional guidance clarifying and expanding upon
the Hagel Memorandum, to include veterans’ mental health as well as victimization by sexual
assault and sexual harassment as potential mitigation for misconduct. AR0892-897.
Specifically, the Kurta Memoranda provides that “[l]iberal consideration will be given to
veterans petitioning for discharge relief when the application for relief is based in whole or in
part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or
sexual harassment.” AR0893. The Kurta Memorandum also states that “[u]nless otherwise
indicated, the term ‘discharge’ includes the characterization, narrative reason, separation code,
and re-enlistment code.” AR0895. In addition, the Kurta Memorandum makes clear that
“[t]hese guidance documents are not limited to Under Other Than Honorable Condition
discharge characterizations but rather apply to any petition seeking discharge relief including
requests to change the narrative reason, re-enlistment codes, and upgrades from General to
Honorable characterizations.” Id.

4. The BCNR’s Decision

On September 14, 2017, plaintiff applied for the correction of his military records with
the BCNR.2 AR0020-21. In the brief supporting his application, plaintiff requested that the

2
Under 10 U.S.C. § 1552, the Secretary of a military department may correct any military record of the
Secretary’s department when the Secretary considers it necessary to correct an error or remove an
injustice. 10 U.S.C. § 1552(a). Former members of the Armed Forces may bring a claim for review of a
discharge or dismissal based upon matters relating to post-traumatic stress disorder or traumatic brain
injury under Section 1552. 10 U.S.C. § 1552(h). In such cases, a military board must review the medical
evidence that is presented by the claimant and review with liberal consideration the veteran’s claim that
post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances
resulting in the discharge or dismissal, or to the original characterization of the claimant’s discharge or
dismissal. 10 U.S.C. § 1552(h)(2)(B); see also 10 U.S.C. § 1553(d)(3)(A)(ii).

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BCNR correct his military records to reflect that he was unfit and medically retired with at least
a 30% disability rating for psychosis or psychoneurosis. AR0045-047.

To support his petition, plaintiff submitted a psychiatric evaluation report authored by his
psychiatrist, Dr. Ted R. Greenzang. AR0375-391. In this report, Dr. Greenzang opines that
plaintiff was experiencing manifestations of PTSD at the time of his discharge from the military.
AR0389. Dr. Greenzang also opines that plaintiff’s medical history was not consistent with a
diagnosis of a personality disorder. Id. And so, Dr. Greenzang concludes in his report that
plaintiff’s separation from the Navy for unsuitability was “not an appropriate disposition.”
AR0390-391.

The BCNR also considered two advisory opinions that were prepared for its
consideration: (1) a September 20, 2018, advisory opinion prepared by the Senior Medical
(Psychiatric) Advisor (“SMA”) and (2) a September 24, 2018, advisory opinion prepared by the
Director of the Secretary of the Navy, Council of Review Boards. AR0002; AR004-009.

In the September 20, 2018, advisory opinion, the SMA considered several documents,
including plaintiff’s military medical records, an April 1967 correspondence from plaintiff’s
commanding officer denying plaintiff’s request for advanced schooling, a September 1968
discharge recommendation, an October 1968 psychiatric clinical note, and the VA’s rating
decisions regarding plaintiff’s VA benefits claims. AR0004-0008. Based upon this evidence,
the SMA recommended the denial of plaintiff’s petition, because: (1) plaintiff’s PTSD diagnosis
was not part of the then-existing American Psychiatric Association Diagnostic and Statistical
Manual (“DSM”) II (1968) and the PTSD diagnosis was not officially recognized until the
publication of the DSM III (1980) twelve years later and (2) the diagnoses most closely
resembling PTSD in the DSM II compensable by Department of Defense Physical Evaluation
Board action were known as “Psychoses and Psychoneuroses,” neither of which were applied to
plaintiff’s clinical presentation in 1968. AR0008.

The SMA also determined that there was no indication that plaintiff had ever complained
of symptoms directly related to in-service stressors. AR0007. Rather, the SMA found that
plaintiff had “demonstrated problems adjusting to the Navy prior to either of th[o]se tragic
events.” Id. In addition, the SMA observed that “[r]etrospective subjective accounts occurring
remote from an applicant’s active service are of significantly less probative value with respect to

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determining fitness contemporary with a given period of active duty.” AR0008. And so, the
SMA recommended the denial of plaintiff’s petition. Id.

The September 24, 2018, advisory opinion prepared by the Director of the Secretary of
the Navy, Council of Review Boards reached a similar conclusion. Specifically, the September
24, 2018, advisory opinion states that plaintiff’s military record contains:

[a] preponderance of objective evidence supporting the existence of
significant adjustment difficulties beginning prior to the applicant’s
enlistment and evolving into attitudinal and behavioral issues in conflict
with the requirements of military service prior to the two exposures to
psychological trauma which later occurred.

AR0009.

The BCNR also considered a memorandum prepared by Dr. Greenzang in response to the
SMA’s advisory opinion. AR0766-772. In that memorandum, Dr. Greenzang opines that the
advisory opinion “failed in multiple regards to provide an adequate evaluation of Mr. Doyon’s
condition, . . . [and it] led [Dr. Greenzang] to conclude that [Mr. Doyon] suffers from PTSD,
which existed during and stems from his experiences in the Navy.” AR0767.

The BCNR issued a decision denying plaintiff’s petition on November 20, 2018.
AR0001-003. In its denial decision, the BCNR waived the statute of limitations under 10 U.S.C.
§ 1552(b) and resolved plaintiff’s disability retirement claim on the merits without conducting an
in-person hearing. AR0001-002. In doing so, the BCNR “substantially concurred” with the
September 20, 2018, and September 24, 2018, advisory opinions. AR0002.

Specifically, the BCNR concluded that insufficient evidence of unfitness for continued
Naval service due to psychosis or psychoneurosis existed in the evidentiary record. Id. In this
regard, the BCNR found that, among other things, “there was no evidence of recurrent psychotic
episodes, or a single well-established psychotic episode with existing symptoms or residuals
sufficient to interfere with performance of duty.” Id.

The BCNR also declined to afford substantial weight to the VA’s disability ratings, or to
Dr. Greenzang’s medical opinion. Id. In this regard, the BCNR determined that the more recent
diagnoses of PTSD, although uncontested by the BCNR, “were made too distant in time from
1968 to be probative of [plaintiff’s] fitness for continued Naval service in 1968.” Id. The BCNR

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also observed that there was “more than enough evidence [in plaintiff’s military record] of
behavior consistent with a personality disorder to support the diagnosis made in 1968.” Id. And
so, the BCNR concluded that “insufficient evidence of error or injustice exists to warrant a
change to [plaintiff’s military] record.” Id.

Plaintiff commenced this action challenging the BCNR’s decision on December 27,
2019. See generally Compl.

C. Procedural Background

Plaintiff filed the complaint in this military pay matter on December 27, 2019. Id. On
May 27, 2020, the government filed a motion to dismiss this matter for lack of subject-matter
jurisdiction and for failure to state a claim upon which relief can be granted and a motion for
judgment upon the administrative record, pursuant to RCFC 12(b)(1) and (6), and RCFC 52.1.
See generally Def. Mot.

On June 24, 2020, plaintiff filed a response and opposition to the government’s motion to
dismiss and a cross-motion for judgment upon the administrative record. See generally Pl. Mot.
On June 24, 2020, plaintiff also filed a motion to supplement the administrative record. See
generally Pl. Mot. to Supp.

On July 15, 2020, the government filed a reply in support of its motion to dismiss and
motion for judgment upon the administrative record, and a response and opposition to plaintiff’s
cross-motion for judgment upon the administrative record and motion to supplement the
administrative record. See generally Def. Resp. On August 5, 2020, plaintiff filed a reply in
support of his motions. See generally Pl. Reply.

These matters having been fully briefed, the Court resolves the pending motions.

III. LEGAL STANDARDS

A. RCFC 12(b)(1) And Military Pay Cases

When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(1). But, plaintiff
bears the burden of establishing subject-matter jurisdiction and he must do so by a
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preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). Should the Court determine that “it lacks jurisdiction over the subject matter, it
must dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and “possess[es] only that power authorized by Constitution and statute . . . .” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Specifically, the Tucker Act grants the
Court jurisdiction over:

[A]ny claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1).

The Tucker Act is, however, “a jurisdictional statute; it does not create any substantive
right enforceable against the United States for money damages. . . . [T]he Act merely confers
jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right
exists.” United States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). And so, to pursue
a substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute, or regulation; an express or implied
contract with the United States; or an illegal exaction of money by the United States. Cabral v.
United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed.
Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes if it ‘can
fairly be interpreted as mandating compensation for damages sustained as a result of the breach
of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell, 463
U.S. 206, 217 (1983)) (brackets existing).

The Military Pay Act and the Military Disability Retirement Pay Act are such money-
mandating sources of law. 37 U.S.C. § 204; 10 U.S.C. § 1201; see also Bias v. United States,
131 Fed. Cl. 350, 354 (2017), aff’d in part and rev’d in part, 722 F. App’x 1009 (Fed. Cir. 2018)
(“[T]he Military Pay Act, 37 U.S.C. § 204, is a money-mandating source of law that provides the
[C]ourt with jurisdiction.”); Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005)
(holding that 10 U.S.C. § 1201 is a money-mandating statute). Under the Military Pay Act,

9
members of a uniformed service are entitled to the basic pay of the pay grade to which they are
assigned, or distributed, in accordance with their years of service. 37 U.S.C. § 204(a). And so,
the United States Court of Appeals for the Federal Circuit has recognized that the Military Pay
Act “provides for suit in [this Court] when the military, in violation of the Constitution, a statute,
or a regulation, has denied military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed.
Cir. 2013) (quoting Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)). The Military
Disability Retirement Pay Act governs military retirement for disability. 10 U.S.C. § 1201; see
also Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005). The Act provides that
“upon the Secretary’s determination that a service member is ‘unfit to perform the duties of the
member’s office, grade, rank, or rating because of physical disability incurred while entitled to
basic pay,’ the service member may retire for disability.” Chambers, 417 F.3d at 1223; 10
U.S.C. § 1201(a).

This Court has also held that a claim must be justiciable to survive a motion to dismiss.
See Houghtling v. United States, 114 Fed. Cl. 149, 156–57 (2013). In this regard, the United
States Supreme Court has held that justiciability depends upon “whether the duty asserted can be
judicially identified and its breach judicially determined, and whether protection for the right
asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198 (1962); see also Murphy v.
United States, 993 F.2d 871, 872 (Fed. Cir. 1993). And so, a controversy is justiciable only if “it
is ‘one which the courts can finally and effectively decide, under tests and standards which they
can soundly administer within their special field of competence.’” Voge v. United States, 844
F.2d 776, 780 (Fed. Cir. 1988) (quoting Greene v. McElroy, 254 F.2d 944, 953 (D.C. Cir.
1958)); see also Antonellis, 723 F.3d at 1334; Adkins v. United States, 68 F.3d 1317, 1322 (Fed.
Cir. 1995).

The question of justiciability is frequently at issue when courts review military activities,
and courts have often held that decisions made by the military are “beyond the institutional
competence of courts to review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)
(“Because ‘decisions as to the composition, training, equipping, and control of a military force
are essentially professional military judgments,’ . . . the substance of such decisions, like many
other judgments committed to the discretion of government officials, is frequently beyond the
institutional competence of courts to review.”) (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)); Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) (“[J]udges are not given the task of
10
running the Army.”); see also Murphy, 993 F.2d at 872; Voge, 844 F.2d at 780. But, even when
the merits of a military personnel decision are nonjusticiable, the process by which the decision
has been made may be subject to judicial review. Adkins, 68 F.3d at 1323 (“[A] challenge to the
particular procedure followed in rendering a military decision may present a justiciable
controversy.”) (emphasis original); Murphy, 993 F.2d at 873. And so, if the military chooses to
introduce its own procedural regulations, the Court may review any violations of such
regulations even if the underlying decision is nonjusticiable. Murphy, 993 F.2d at 873. In such
circumstances, the Court “merely determines whether the procedures were followed by applying
the facts to the statutory or regulatory standard.” Id.

B. RCFC 12(b)(6)

When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted pursuant to RCFC 12(b)(6), this Court similarly assumes that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s
favor. See Call Henry, Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017) (citing
Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014)). And so, to survive a motion
to dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

When the complaint fails to “state a claim to relief that is plausible on its face,” the Court
must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand,
“[w]hen there are well-pleaded factual allegations, a court should assume their veracity,” and
determine whether it is plausible, based upon these facts, to find against the defendant. Id. at
678-79 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

C. RCFC 52.1

Unlike a summary judgment motion under RCFC 56, the existence of a genuine issue of
material fact does not preclude a grant of judgment upon the administrative record under RCFC
52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011). Rather, the Court’s inquiry
is whether, “given all the disputed and undisputed facts, a party has met its burden of proof based

11
on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131
(2006); see also Bannum v. United States, 404 F.3d 1346, 1355-56 (Fed. Cir. 2005).

In this regard, judicial review in military pay cases is generally limited to the
administrative record that was before a military board. Metz v. United States, 466 F.3d 991, 998
(Fed. Cir. 2006). The Court will not disturb the decisions of military boards unless the decision
was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Porter v.
United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998); Koretsky v. United States, 57 Fed. Cl. 154,
158 (2003). Given this, the Court does not reweigh the evidence in reviewing board decisions.
Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983). Rather, the Court considers
whether the conclusions of the board are supported by substantial evidence. Id. And so, the
Court does not substitute its judgment for that of the board when reasonable minds could reach
different conclusions based upon the same evidence. Wronke v. Marsh, 787 F.2d 1569, 1576
(Fed. Cir. 1986).

D. Supplementing The Administrative Record

Lastly, the Federal Circuit held in Axiom Resource Management, Inc. v. United States,
564 F.3d 1374 (Fed. Cir. 2009), that the “parties’ ability to supplement the administrative record
is limited” and that the administrative record should only be supplemented “if the existing record
is insufficient to permit meaningful review consistent with the APA.” Axiom Res. Mgmt., Inc.,
564 F.3d at 1379-81; see also Caddell Constr. Co. v. United States, 111 Fed. Cl. 49, 93 (2013).
The Federal Circuit has also recognized that the Supreme Court held in Camp v. Pitts that “‘the
focal point for judicial review should be the administrative record already in existence, not some
new record made initially in the reviewing court.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1379
(quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). This focus is maintained to prevent courts
from using new evidence to “convert the arbitrary and capricious standard into effectively de
novo review.” L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 671 (2009)
(internal quotation marks omitted); see also Murakami v. United States, 46 Fed. Cl. 731, 735
(2000). And so, this Court has interpreted the Federal Circuit’s directive in Axiom to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is
not permitted when the documents proffered are unnecessary for an effective review of the
government’s decision. L-3 Commc’ns EOTech, Inc., 87 Fed. Cl. at 672.

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IV. LEGAL ANALYSIS

The government has moved to dismiss this matter for lack of subject-matter jurisdiction
and for failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(1) and
(6), upon the grounds that the Court does not possess jurisdiction to consider plaintiff’s due
process claim and that the remaining claims in the complaint should be dismissed because
plaintiff is not entitled to the requested relief. Def. Mot. at 12-16.

The parties have also filed cross-motions for judgment upon the administrative record,
pursuant to RCFC 52.1. See generally id.; Pl. Mot. The government argues in its motion for
judgment upon the administrative record that the BCNR’s decision to deny plaintiff’s application
to correct his military records was reasonable and supported by substantial evidence, because the
BCNR applied the appropriate legal standards and adequately considered plaintiff’s evidence and
claims. Id. at 16-26. Plaintiff counters in his cross-motion for judgment upon the administrative
record that he has alleged plausible claims in the complaint, and he argues that the record
evidence in this case shows that the BCNR’s decision to deny his application was arbitrary,
capricious, not supported by substantial evidence and contrary to law. Pl. Mot. at 22-50. In
addition, plaintiff has moved to supplement the administrative record with several documents
about the drug Thorazine. See generally Pl. Mot. to Supp.

For the reasons set forth below, a careful review of the complaint and the administrative
record shows that the Court does not possess subject-matter jurisdiction to consider plaintiff’s
due process claim. Plaintiff also has not shown that supplementing the administrative record is
warranted in this military pay case. In addition, the administrative record also makes clear that
the BCNR complied with applicable law in considering plaintiff’s application to correct his
military records and that the BCNR’s decision to deny plaintiff’s application was reasonable and
supported by substantial evidence. And so, the Court: (1) GRANTS-in-PART the
government’s motion to dismiss; (2) DENIES plaintiff’s motion to supplement the
administrative record; (3) GRANTS the government’s motion for judgment upon the
administrative record; and (4) DENIES plaintiff’s cross-motion for judgment upon the
administrative record.

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 A. The Court Grants-In-Part The Government’s Motion To Dismiss

As a preliminary matter, the government persuasively argues that the Court should
dismiss plaintiff’s due process claim for lack of subject-matter jurisdiction. It is well-established
that this Court does not possess subject-matter jurisdiction to consider claims based upon the due
process clauses of the Fifth or Fourteenth Amendments, because these constitutional provisions
are not money-mandating. LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed Cir. 1995)
(finding that the due process and equal protection clauses of the Fourteenth Amendment do not
constitute “a sufficient basis for jurisdiction because they do not mandate payment of money by
the government”); see also Quailes v. United States, 25 Cl. Ct. 659, 664, aff’d, 979 F.2d 216
(Fed. Cir. 1992) (quoting Mullenberg v. United States, 857 F.2d 770, 772-73 (Fed. Cir. 1988))
(“This court does not have jurisdiction ... because neither the due process or equal protection
clauses of the Constitution ‘obligate the United States to pay money damages.’”); McCullough v.
United States, 76 Fed. Cl. 1, 4 (2006) (“[T]he Fifth Amendment is not a source that mandates the
payment of money to plaintiff.”); James v. Caldera, 159 F.3d 573, 581 (Fed. Cir. 1998). In this
case, plaintiff alleges in Count III of the complaint that the BCNR failed to afford him
procedural due process in violation of the Due Process Clause of the Fifth Amendment. Compl.
at ¶ 83-85. The Court may not consider plaintiff’s constitutional law claim because it is not
based upon a money-mandating source of law. LeBlanc, 50 F.3d at 1028. And so, the Court
must dismiss this claim for lack of subject-matter jurisdiction. RCFC 12(b)(1).

The government’s argument that the Court should also dismiss the remaining claims in
this case for failure to state a claim upon which relief can be granted is less persuasive. The
government argues that the Court should dismiss Counts I and II of the complaint, because
plaintiff is not entitled to the relief that he seeks in those claims—namely, a 30% disability
rating, disability retirement pay and placement on the permanent disability retirement list. Def.
Mot. at 14-16; Def. Resp. at 3-4. In this regard, the government contends that plaintiff would not
be entitled to such relief—even if the Navy were to change his medical diagnosis to
psychoneurosis—because such a diagnosis would not necessarily mean that plaintiff was unfit
for duty. Def. Mot. at 16.

The government’s argument is, at bottom, an argument about the nature of the relief that
the Court may award to plaintiff should the Court determine that the BCNR erred in denying

14
plaintiff’s application to correct his military records. Because this issue is more appropriately
addressed within the context of the parties’ cross-motions for judgment upon the administrative
record, and the complaint contains well-pleaded factual allegations to support plaintiff’s claims
in Counts I and II of the complaint, the Court declines to dismiss these claims for failure to state
a claim upon which relief can be granted. RCFC 12(b)(6).

B. Supplementing The Administrative Record Is Not Warranted

The Court also declines to supplement the existing administrative record in this military
pay case with information about the drug Thorazine. Plaintiff seeks to supplement the
administrative record with: (1) a National Center for Biotechnology Institute study describing
the use and effects of Thorazine (Chlorpromazine); (2) two Thorazine advertisements; and (3) a
June 2, 2013, scientific article by the Science History Institute describing the impact of
Thorazine on the treatment of mental illness. See generally Pl. Mot. to Supp. The Federal
Circuit has long recognized that judicial review in military pay cases is generally limited to the
administrative record that was before a military board. Metz v. United States, 466 F.3d 991, 998-
99 (Fed. Cir. 2006). As the government correctly observes in its opposition to plaintiff’s motion
to supplement, the existing administrative record contains all of the documents that provided the
factual, procedural and legal predicate for the BCNR’s decision to deny plaintiff’s application to
correct his military records. Def. Resp. at 12-13; see generally AR. Given this, supplementation
of the administrative record with the aforementioned documents is not warranted and the Court
DENIES plaintiff’s motion.3

C. The BCNR’s Decision Was In Accordance
With Law And Supported By Substantial Evidence

Turning to the merits of plaintiff’s claims, the administrative record shows that the
BCNR complied with applicable law in considering plaintiff’s application to correct his military
records and that the BCNR’s denial decision is supported by substantial evidence. And so, for
the reasons that follow, the Court GRANTS the government’s motion for judgment upon the

3
The Court may exercise its discretion to take judicial notice of the certain incontrovertible facts
contained in these documents about the uses and effects of Thorazine, consistent with Federal Rule of
Evidence 201. See Fed. R. Evid. 201.

15
administrative record and DENIES plaintiff’s cross-motion for judgment upon the administrative
record.

1. The BCNR Did Not Violate Department Of Defense Guidance

As an initial matter, the record evidence shows that the BCNR did not err by declining to
apply the Hagel Memorandum and Kurta Memorandum to plaintiff’s application. Plaintiff
argues in his cross-motion for judgment upon the administrative record that the BCNR erred by
failing to apply the guidance and standards set forth in the Hagel and Kurta Memoranda to give
liberal consideration to his application, because it is undisputed that plaintiff has been diagnosed
with PTSD. Pl. Mot. at 25, 30-31. A careful review of these memoranda shows, however, that
the BCNR appropriately declined to apply this guidance in this case.

The Hagel and Kurta Memoranda require that military correction boards give liberal
consideration to veterans’ applications petitioning for discharge relief, when the application for
relief is based in whole or in part on matters relating to mental health conditions, including
PTSD. Def. Mot. at 19; Pl. Mot. at 23; see also AR0186; AR0893. While plaintiff correctly
observes that his claims are related to his PTSD diagnosis, the Court agrees with the government
that the Hagel Memorandum does not apply to the application at issue in this case because
plaintiff is not challenging the characterization of his discharge from the Navy.

The Hagel Memorandum is entitled “Supplemental Guidance to Military Boards for
Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans
Claiming Post Traumatic Stress Disorder.” AR0184. As the title of this memorandum suggests,
the Hagel Memorandum applies to petitions containing discharge characterization upgrade
requests. AR0186. In this case, it is undisputed that plaintiff is not seeking to challenge the
honorable characterization of his discharge from the Navy. Def. Mot. at 19-20; Pl. Mot. at 32-35
(showing that plaintiff does not challenge his honorable discharge characterization). Rather, the
complaint makes clear that plaintiff seeks to challenge the Navy’s decision to separate him from
the military for unsuitability, rather than for unfitness. Compl. at ¶¶ 39-40. Because the Court
does not read the Hagel Memorandum to apply to unfitness determinations, particularly when
they are unrelated to the characterization of discharge, the Court agrees with the government that
the BCNR did not err by declining to apply the guidance in the Hagel Memorandum to plaintiff’s
application.

16
 Plaintiff’s argument that the Kurta Memorandum applies to his case, because he is
challenging the narrative reason for his honorable discharge from the Navy presents a closer
question. The Kurta Memorandum provides that “[l]iberal consideration will be given to
veterans petitioning for discharge relief when the application for relief is based in whole or in
part on matters relating to mental health conditions, including PTSD,” and that “[u]nless
otherwise indicated, the term “discharge” includes the characterization, narrative reason,
separation code, and re-enlistment code.” AR0893; AR0895 (emphasis supplied.). The Kurta
Memorandum also makes clear that its guidance is “not limited to Under Other Than Honorable
Condition discharge characterizations but rather apply to any petition seeking discharge relief
including requests to change the narrative reason, re-enlistment codes, and upgrades from
General to Honorable characterizations.” AR0895. And so, plaintiff correctly argues that the
Kurta Memorandum requires that the BCNR give “liberal consideration” to applications seeking
discharge relief that challenge the narrative reason for a military discharge. Pl. Mot. at 34;
AR0895.

But, plaintiff’s contention that he is challenging the narrative reason for his honorable
discharge from the Navy in this case is belied by a plain reading of the complaint and plaintiff’s
application to correct his military records. The complaint and plaintiff’s application before the
BCNR make clear that plaintiff seeks to have his military records corrected to show that he was
medically retired due to PTSD, with a disability rating of no less than 30% and was thus, unfit
for duty in 1968. AR0019-0021; Compl. at Prayer for Relief. Notably, plaintiff’s application
before the BCNR states that he seeks to correct his military records to “show that he was found
unfit and medically retired for psychosis and psychoneuroses.” AR0019 (emphasis supplied);
see also AR0025 (plaintiff seeks “to correct an error made in 1968 when Airman Doyon should
have been granted a military retirement for the mental health impacts of trauma he experienced
while in service.”). Because plaintiff seeks a determination regarding his fitness for duty in
1968, the Court is not persuaded that the claim that plaintiff asserts in this case can be properly
characterized as a challenge to the narrative reason for his discharge.

17
 Indeed, as the government correctly observes, a determination regarding plaintiff’s fitness
for duty in 1968 is necessary to award the relief sought in this case.4 Def. Resp. at 6; see also
AR0002 (showing that the BCNR concluded that there is “insufficient evidence of unfitness for
continued naval service due to psychosis or psychoneurosis.”). As discussed above, the Court
does not read either the Hagel or Kurta Memoranda to apply to such unfitness or disability
retirement determinations. AR0184-0187; AR0892-0897. And so, the Court concludes that the
BCNR did not err by declining to apply those memoranda to plaintiff’s claims.

2. The BCNR’s Decision Is Supported By Substantial Evidence

The record evidence also shows that the BCNR’s decision to deny plaintiff’s application
was reasonable and supported by substantial evidence. It is well-established that the Court will
not disturb the decision of the BCNR unless the board’s decision was arbitrary, capricious,
unsupported by substantial evidence, or contrary to law. Porter v. United States, 163 F.3d 1304,
1312 (Fed. Cir. 1998); Koretsky v. United States, 57 Fed. Cl. 154, 158 (2003). Plaintiff has not
made such a showing here for several reasons.

First, the record evidence shows that the BCNR reasonably considered the medical
opinion of plaintiff’s psychiatrist, Dr. Greenzang, and the VA’s disability ratings for plaintiff’s
service-related PTSD, in reviewing plaintiff’s application. Plaintiff argues in his cross-motion
that the BCNR erred, because it should not have dismissed the determinations made by Dr.
Greenzang and the VA that he suffers from service-related PTSD. Pl. Mot. at 43-44. But, a
review of the record evidence makes clear that the BCNR appropriately considered this evidence
in reaching the decision to deny plaintiff’s application. In this regard, the BCNR acknowledges
in its decision that plaintiff was “rated by the Department of Veterans Affairs (VA) for Post-
Traumatic Stress Disorder (PTSD) in 2013 and assigned a 50% disability rating . . . [and that
plaintiff’s disability rating] was later increased to 70% by the VA.” AR0002. The BCNR also
acknowledges in the decision that plaintiff has been diagnosed with PTSD. Id.

The record evidence also shows that the BCNR reasonably determined that Dr.
Greenzang’s 2017 PTSD diagnosis and the VA’s 2014 and 2015 disability ratings occurred “too

4
The government argues that a determination of whether plaintiff was fit for duty is not a judicial
province. Def. Mot. at 16; Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983).

18
distant in time” from the date of plaintiff’s discharge from the Navy to be probative of whether
plaintiff was fit for duty in 1968. In this regard, the BCNR states in its decision that “these
opinions were reached “too distant in time” from 1968 and therefore, were less credible than
plaintiff’s October 28, 1968, diagnosis of “Emotional Unstable Personality #3210, with noted
paranoid trait in his personality.” AR0002; AR0234. The substantial evidence supports the
BCNR’s determination.

The administrative record makes clear that the VA examined plaintiff for PTSD
symptoms more than 40 years after plaintiff was discharged from the Navy. AR0087-0091 (VA
rating decision, Sept. 16, 2014); AR0092-0096 (VA rating decision, Nov. 18, 2015); AR0064-
0081 (VA PTSD examination report, June 11, 2014); AR0511-517 (VA PTSD examination
report, Oct. 21, 2015). The record evidence also shows that Dr. Greenzang’s medical opinion
diagnosing plaintiff with PTSD was issued in 2017, again, more than four decades after plaintiff
was discharged. AR0375-0391 (Dr. Greenzang’s opinion, Sept. 13, 2017).

The record evidence also shows that the Navy medical professionals who diagnosed
plaintiff with a personality disorder in 1968 personally observed plaintiff at that time. AR0226-
229; AR0234 (showing that two Navy mental health specialists personally observed plaintiff
before changing his diagnosis to “Emotional Unstable Personality #3210, with noted paranoid
trait in his personality.”). Given the evidence in the administrative record showing the
considerable passage of time between plaintiff’s discharge from the Navy and his PTSD
diagnosis, the substantial evidence supports the BCNR’s determination that plaintiff’s PTSD
diagnosis and VA disability ratings were too remote to be probative of plaintiff’s fitness for duty.

The BCNR’s finding that plaintiff was properly separated from the Navy for unsuitability
due to a preexisting personality disorder is also supported by substantial evidence. Plaintiff
argues that the BCNR’s finding lacks evidentiary support, because he was not found to have a
personality disorder upon entry to the military and his service record shows adequate
performance during the first 12 months of his enlistment. Pl. Mot. at 38-39. But, again, there is
substantial evidence in the record to support the BCNR’s findings.

The record evidence shows that plaintiff went on unauthorized absence from the Navy in
May 1968, because he was “suffering from significant emotional torment.” AR0006; Compl. at
¶ 26. The record evidence also shows that, after plaintiff returned to duty, he was transferred to

19
Naval Base Subic Bay on August 16, 1968, because he was “expressing fears of possibly doing
harm to himself and also expressing admiration for sailors who [had] deserted from his ship.”
AR0006; AR0226.

Plaintiff’s hospital records from this time period also note that plaintiff felt “isolated and
different from his shipmates,” and that he was “definitely afraid of forming close relationships
with his peer groups.” Id. Plaintiff’s medical records similarly show that a medical officer
concluded in 1968 that plaintiff suffered from a passive aggressive personality disorder and
recommended that he be returned to full duty. AR0229. As discussed above, this diagnosis was
subsequently changed on October 28, 1968, to Emotionally Unstable Personality #3210, with
noted paranoid traits in his personality. AR0234.

While plaintiff maintains that his medical and service records show that he suffered from
service-related PTSD at the time of his discharge from the Navy, the BCNR reasonably
determined that this evidence supports a finding that plaintiff had a personality disorder at that
time. Given this evidence, the BCNR’s conclusion that “there was more than enough evidence
of behavior consistent with a personality disorder to support the diagnosis made in 1968” is
supported by substantial evidence. AR0002.

The record evidence also shows that the BCNR appropriately weighed and considered the
advisory opinions provided by the SMA and the Director of the Secretary of the Navy, Council
of Review Boards in reviewing plaintiff’s application. AR0002; AR0004-0009. Plaintiff argues
that the BCNR’s reliance upon these two advisory opinions is misplaced, because the opinions
are “inconsistent with the factual record.” Pl. Reply at 12-13. But, the record evidence shows
that the BCNR properly considered and weighed the probative value of these advisory opinions
in reviewing plaintiff’s application.

In this regard, the record evidence shows that the BCNR “substantially concurred” with
the findings in the SMA’s September 20, 2018, advisory opinion and the Director of the
Secretary of the Navy, Council of Review Boards’ September 24, 2018, advisory opinion to
support its determination that “there was no evidence of recurrent psychotic episodes, or a single
well-established psychotic episode with existing symptoms or residuals sufficient to interfere
with performance of duty in [plaintiff’s] case.” AR0002; AR0007-0008. These advisory
opinions both find that there is little objective evidence in plaintiff’s service treatment record

20
suggesting that a PTSD-related stress reaction made a significant contribution to the
circumstances resulting in his administrative separation from the Navy. AR0008; AR0009.
Again, there is substantial evidence in the record to support this finding.

A review of the record evidence shows that the medical record for plaintiff’s August
1968 hospitalization at Subic Bay is devoid of any indication that plaintiff was suffering from
psychoses or psychoneuroses. AR0226-0227. The record evidence also shows that plaintiff
returned to duty after this hospitalization on August 30, 1968. AR0227; AR0229.

The evidentiary record also shows that, during a subsequent October 28, 1968, mental
health examination, plaintiff was determined to be “clearly sane and responsible, not amenable to
psychiatric treatment within the service,” and that he “[did] not warrant hospitalization.”
AR0234. In addition, the administrative record shows that plaintiff enrolled in a major
university after being discharged from the Navy and that he did not suffer from any documented
psychotic episodes for 40 years. AR0008-0009. And so, the record evidence shows that the
BCNR’s determination that there was no objective evidence that plaintiff suffered from recurrent
psychotic episodes is supported by substantial evidence.

The Court is also not persuaded by plaintiff’s argument that the BCNR erred by giving
too much weight to his Naval performance evaluations and to a letter sent to Senator Kennedy by
his parents. Pl. Reply at 14; AR0220-0222; AR0583; AR0603-0606. Plaintiff correctly observes
that these documents do not state that he had a personality disorder. See id. But, the
performance evaluations and letter do provide contemporaneous support for the BCNR’s
determination that plaintiff was “deeply bothered by [his] service in the Navy.” AR0002.

Notably, plaintiff’s performance evaluations state that plaintiff “found it difficult to
adjust to Navy life,” “[he] has not made a genuine effort to advance on his own,” and that
plaintiff “seldom displays initiative or interest in his work.” AR0603; AR0606. The letter sent
to Senator Kennedy also states that plaintiff was in a “deeply depressed mood” and that his
parents feared that plaintiff would “attempt to jump ship or commit some desperate act for which
he will not be responsible in his present state of mind.” AR0222; AR0876. In its decision, the
BCNR states that it relied upon the letter sent to Senator Kennedy to find that plaintiff was
“deeply bothered” by his service in the Navy due to his personal convictions against the Vietnam
War. AR0002. And so, the BCNR reasonably concluded that plaintiff’s personal convictions,

21
rather than the traumatic incidents that plaintiff witnessed during his military service, were the
basis for the conduct which led to plaintiff’s discharge due to unsuitability. Id.

The Court also observes that plaintiff correctly argues that there is some evidence in the
administrative record to support his claim that he suffered from service-related PTSD at the time
of his discharge from the Navy. Pl. Mot. at 41-44; AR0203-0204; AR0206-0209; AR0222;
AR0224; AR0375-0390; AR0068-0070; AR0362-0363. In this regard, it is notable that
plaintiff’s PTSD diagnosis is not in dispute. Def. Mot. at 3; Def. Resp. at 8; AR0002 (“the
Board does not contest that [plaintiff has] been diagnosed with PTSD”). But, the administrative
record in this military pay case shows that the BCNR fully considered this evidence and that the
board’s decision to deny plaintiff’s application to correct his military records is supported by
substantial evidence. Given this, the Court will not substitute its judgment for that of the BCNR
when reasonable minds could reach different conclusions about plaintiff’s mental health in 1968
based upon the same evidence. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986). And
so, the Court GRANTS the government’s motion for judgment upon the administrative record
and DENIES plaintiff’s cross-motion for judgment upon the administrative record.

V. CONCLUSION

In sum, a careful review of the complaint and the administrative record shows that the
Court does not possess subject-matter jurisdiction to consider plaintiff’s constitutional law claim.
The administrative record also shows that the BCNR complied with applicable law in
considering plaintiff’s application to correct his military records and that the BCNR’s decision to
deny plaintiff’s application was reasonable and supported by substantial evidence.

And so, for the foregoing reasons, the Court:

1. GRANTS-in-PART the government’s motion to dismiss;

2. DENIES plaintiff’s motion to supplement the administrative record;

3. GRANTS the government’s motion for judgment upon the administrative record; and

22
4. DENIES plaintiff’s cross-motion for judgment upon the administrative record.

The Clerk shall enter judgment accordingly.

Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge

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