Judicial Review of Military Personnel Matters
Servicemembers may seek judicial review of military personnel decisions in a United States District Court or the United States Court of Federal Claims. Federal courts may review final BCMR decisions or, in some cases, members can seek direct review of certain military decisions without first applying to the BCMR. Which court possesses jurisdiction over a particular matter—and whether your case might be successful—is highly fact-specific and nuanced. It requires an experienced attorney well-versed in the complex interplay between district court and Court of Federal Claims jurisprudence to evaluate your options and determine the best legal strategy.
Timing Is Vital
A litigant has six years from the date their claims “accrue” to bring their claims in a federal court. When a claim accrues depends on the nature of the claim and the court that possesses jurisdiction. Generally, a litigant may challenge a BCMR’s decision-making in a federal district court within six years of the board’s final decision. However, cases involving “money claims” that fall within the jurisdiction of the Court of Federal Claims typically accrue on the date of the monetary harm, regardless of whether the plaintiff has gone to the BCMR. Over the years, many cases have been dismissed in the Court of Federal Claims for lack of jurisdiction because the plaintiff erroneously believed that they had six-years from a final BCMR decision to file suit in that court when, in fact, they had six years from the date of their separation.
Thus, if you believe that your legal issue may require judicial review, even if you have a pending BCMR matter, it is imperative that you consult with an experience attorney to ensure that all your potential legal options remain available to you.
Success In Federal Court Begins At The Earliest Possible Stages
If a case cannot be resolved earlier and must proceed to the BCMR or federal court, the quality of your representation in earlier phases can increase your chances of success on appeal. Applicants bear the burden of producing evidence of errors or injustices in their case and the record created at the BCMR level becomes the record evidence a federal court will have before it on judicial review. Further, arguments or issues not raised at the BCMR level are generally waived in a later federal court action.
Attorneys who understand the big picture of the role federal courts play in military personnel matters can:
- work to create and preserve key record evidence required to meet the BCMR’s evidentiary burden and to build a strong record for federal court if such action becomes necessary
- develop and preserve legal arguments at the BCMR level to avoid later litigation pitfalls
- leverage federal court precedent to ensure the BCMRs follow the rules dictated by relevant holdings
The Law Office of Jocelyn C. Stewart provides expertise and representation at every level, which gives her clients better continuity for the longer legal battles that extend to the BCMR or federal court levels.