Carter v. McPherson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TERESA CARTER, et al.,

Plaintiffs,

v. Case No. 1:20-cv-01702-RCL

CARLOS DEL TORO, in his official
capacity as Secretary of the Navy,

Defendant.

MEMORANDUM ORDER

This Court recently issued a memorandum opinion in the class action Torres v. Del Toro ,

which involved a challenge to the Navy' s Properly Referred Policy as administered between

September 12, 20 16 and June 11, 2018. No. 1:21-cv-306-RCL, 2022 WL 5167371 (D.D.C. Oct.

5, 2022). In that opinion, the Court held that the Department of the Navy's "Properly Referred

Policy ... was unlawful in its effect on the physical evaluation board decisions" rendered for the

named plaintiff in that case as well as similarly situated class members. Id at *9. The Court

therefore ordered that "[t]he physical evaluation board decisions for each class member" be

"VACATED and SET ASIDE." Order, Torres v. Del Toro, No. l:21-cv-306-RCL, ECF No. 67.

The case was then "REMAl'\lD[ED] to the Secretary of the 1 avy for further proceedings consistent

with the Court's memorandum opinion and relevant law." Id

In July 2020, plaintiffs filed this action challenging the same Properly Referred Policy as

the one at issue in Torres. Complaint, ECF No. 3. In 2021, plaintiffs and the government agreed

that the plaintiffs here were "putative class members in the Torres class action." Joint Status

Report, ECF No. 32. This Court then granted the government's motion to stay this case to consider

consolidation with Torres. Order, ECF No. 40. Plaintiffs moved to lift that stay in July 2022.

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 Mot., ECF No. 41, and briefing on that motion was ripe when the Court issued its memorandum

opinion in Torres.

Given the resolution of the Torres case, this Court ordered the parties in this case to

supplement their briefing on lifting the stay and "explain whether there is any reason why this case
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should not be dismissed, particularly given that plaintiffs were [previously] described . . . as

putative class members in the Torres class action." Minute Order (Oct. 6, 2022). Both parties

filed such a supplement. Pis.' Supp. Mern., ECF No. 47; Def. 's Resp., ECF No. 48.

In their supplemental briefing, plaintiffs ask this Court to take several actions. First,

plaintiffs ask that judgment be entered in their favor. Pls.' Supp. Mem. 2. Second, they ask this

Court to remand to the Secretary

for a replacement PEB proceeding for each Plaintiff to: (i) permit
Plaintiffs to submit evidence on any non-referred conditions, with
instructions for the final combined disability rating decisions for
Plaintiffs to be recalculated by combining the original Department
of Defense ("DoD") disability rating with the disability rating(s)
awarded by the replacement PEB, and (ii) hold an informal, and if
requested, a formal PEB evaluation to review de novo the fitness of
all of Plaintiffs' non-referred conditions.

Id. Third, they request that the Court retain jurisdiction "pending final resolution of Plaintiffs'

replacement PEB proceeding to enable Plaintiffs to return to this Court to file an amended

complaint should the need arise." Id.

The Secretary asks this Court to dismiss this case as moot because plaintiffs no longer have

standing. Def.'s Resp. 2. Under the government's theory, "the Plaintiffs have fully received the

relief that they sought in this case due to a favorable decision in Torres" and thus their case is

moot. Id

Upon review of the briefing and applicable law, this Court will GRANT plaintiffs' motion

to lift the stay and DISMISS this case as moot.

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 I. LEGAL STANDARDS

"Article Ill's case-or-controversy requirement limits (the subject-matter jurisdiction ofJ

federal courts to adjudicating 'actual, ongoing controversies."' Ruseva v. Rosenberg, 490 F. Supp.

3d 320, 322 (D.D.C. 2020) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). "A case becomes

moot- and therefore no longer a Case or Controversy for purposes of Article III-when the issues

presented are no longer live or the parties lack a legally cognizable interest in the outcome."

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (internal quotation marks and citation omitted).

"This occurs when, among other things, the court can provide no effective remedy" Conservation

Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013). For example, a case is moot when

"intervening events make it impossible to grant any effectual relief or if a party has already

obtained all the relief that it has sought" Porzecanski v. Azar, 943 F.3d 472, 479 (D.C. Cir. 2019)

(internal quotation marks and citations omitted).

"If the court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action." Fed. R. Civ. P. 12(h)(3). In other words, even when "neither party presents

the issue, a court must dismiss a case when it lacks subject matter jurisdiction." Masoud v.

Suliman, 816 F. Supp. 2d 77, 79 (D.D.C.2011).

II. DISCUSSION

Plaintiffs' lawsuit against the Secretary is moot because the Court's decision in Torres both

(1) provided all the relief due to plaintiffs and (2) vacated the Secretary's challenged actions,

leaving plaintiffs with no additional avenues for relief.

A. Plaintiffs Have Received All of the Relief They Are Due

First, plaintiffs have already received all the relief they are due through the Torres decision

and are not entitled as a matter of course to a separate injunction or declaratory judgment.

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 The Torres class action was certified under Federal Rule of Civil Procedure 23(b)(2) which

requires "that final injunctive rel ief or corresponding declaratory relief is appropriate respecting

the class as a whole." Fed. R. Civ. P. 23(b)(2); Torres v. Del Toro, No. 1:21-cv-306-RCL, 2021

WL 4989451, at *5, 8 (D.D.C. Oct. 27, 2021). "The key to the (b)(2) class is 'the indivisible nature

of the injunctive or declaratory remedy warranted"' where "a single injunction or declaratory

judgment would provide relief to each member of the class." Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338, 360 (2011) (citation omitted). In fact, Rule 23(b)(2) "does not authorize class

certification when each individual class member would be entitled to a different injunction or

declaratory judgment against the defendant." Id. (emphasis in the original).

In September 2022, this Court ruled in favor of the Torres class and declared the Properly

Referred Policy "unlawful in its effect on the physical evaluation board decisions." Torres, 2022

WL 51673 71 at *9. The Court remanded to the Secretary "for further proceedings consistent with

the Court's memorandum opinion and relevant law." Order, Torres v. Del Toro, No. 1:2 l-cv-306-

RCL, ECF No. 67. Determining that the class members were entitled to a single overarching

judgment, the Court rejected the class's request for additional relief beyond "set[ting] aside the

action it [] found unlawful and then remand[ing] to the agency for next steps consistent with the

clarified legal standard." Torres, 2022 WL 5167371 at *8.

Given that this Court's Torres decision granted all of the relief that the class was due, it

would now be inappropriate to issue a different or further injunction or declaratory judgment in

these plaintiffs' favor. They are putative class members who were subject to the judgment in

Torres. Joint Status Report, ECF No. 32; Def.'s Resp. 5 (agreeing that plaintiffs here are class

members in Torres). The purpose of a Rule 23(b)(2) class action is to resolve the legality of a

defendant's action or actions through a single judgment applicable to the entire class and thus

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 obviate the need for additional litigation. Fed. R. Civ. P. 23(b)(2), advisory committee note to

1966 amendment. The Torres decision is exactly the kind of "final relief' contemplated. See id.

(emphasis added); Wal-Mart Stores, 564 U.S. at 360. A follow-on judgment here would therefore

be inappropriate.

B. There Is No Further Relief to Award Plaintiffs

Second, even beyond the nature of the Rule 23(b)(2) class action, there is no more relief

for this Court to issue. In their Complaint, plaintiffs requested the following relief:

A. Declare that the Director of the Secretary of the Navy Council of
Review Boards' "Properly Referred Policy" implemented and
enforced from September 12, 2016 until June 11, 20 18, violated
statutory authority and Department of Defense directives;

B. Declare that the Director of the Secretary of the Navy Council of
Review Boards' actions in making its fitness determinations for
Plaintiffs were arbitrary, capricious, an abuse of discretion, and not
in accordance with law;

C. Order that the PEB's disability rating decisions resulting in the
denial of medical retirement for Plaintiffs be vacated and set aside;

D. Order that the Director of the Secretary of the Navy Council of
Review Boards must conduct a PEB evaluation for Plaintiffs on a de
novo basis with consideration properly given to all of Plaintiffs'
respective medical conditions;

E. Award Plaintiffs interest and attorneys' fees and costs incurred in
bringing and maintaining this action pursuant to 28 U.S.C. § 2412,
and other applicable authorities; and

F. Grant Plaintiffs such other and further relief as the Court may
deem necessary and appropriate.

ECF No. 3 at 25.

Each category except Section E has been resolved. Pursuant to Torres, the Court has

already awarded the relief requested in Sections A-C by holding the Secretary's actions unlawful,

setting them aside, and then remanding the case so that the Secretary can consider next steps under

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 the clarified legal standard. Torres, 2022 WL 5167371 at *8-9. Plaintiffs' requested relieflabeled

D and F were already rejected for the entire class. Id. And since the Cou1t in Torres determined

that it could not issue further relief and subsequently vacated, set aside, and remanded the relevant

agency actions, there is no more relief for this Court to provide.

Plaintiffs do have one viable remaining req uest for relief in the form of attorneys' fees and

costs. However, "[a] request for attorneys' fees does not rescue a case that is otherwise moot,"

Bakhaje v. Blinken, No. 1:22-cv-642-RCL, 2022 WL 9943 852, at * 1 n.2 (D.D.C. Oct. 17, 2022),

and therefore that final avenue of relief cannot be a basis for this Court to exercise subject-matter

jurisdiction.

* * *

There is no additional remedy for this Court to issue beyond what these plaintiffs have

already received. The relevant actions have been vacated, set aside, and are now sitting on remand

with the Secretary of the Navy. Because there is nothing more for this Court to do in aid of

plaintiffs' civil action, their case is moot. See Porzecanski, 943 F.3d at 479. 1

III. CONCLUSION

Based on the reasoning above, it is hereby ORDERED that plaintiffs' motion to lift the

stay in this case is GRANTED. It is further ORDERED that this case be DISMISSED

WITHOUT PREJUDICE as moot.

It is SO ORDERED.

Date: November ~ 2022
Royce C. Lamberth
United States District Judge

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Plaintiffs' request that the Court retain j urisdiction while the Secretary acts on remand cannot be granted because a
court does not have the ability to retain jurisdiction over a moot case. See Ruseva, 490 F. Supp. 3d at 323.
Furthermore, the Court rejected the same request in Torres. 2022 WL 516737 l at *8-9.

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