Some courts have expressed doubt as to the exact level of deference due to decisions by military review boards that do not involve “military judgment requiring military expertise.” See, e.g., Hall v. Dep't of Defense, No. 19-2354 (RJL), 2021 WL 1026123, at *5 (D.D.C. Mar. 17, 2021). Applying either a heightened standard or normal arbitrary-and-capricious review, the Court comes to the same conclusion.
(citation omitted). Defendants rely on Hall v. Department of Defense, No. 19-cv-2354 (RJL), 2021 WL 1026123 (D.D.C. Mar. 17, 2021) and Silbaugh v. United States, 107 Fed.Cl. 143 (2012), to support their position that “even under the less deferential APA standards, the [PDBR]'s decision was neither arbitrary nor capricious,” but both cases are inapposite. Defs.' Mem. at 13 & n.5.
The traditional practice has been to disregard “claim[s] asserted for the first time in a memorandum of law” because those claims “[were] not made in the [plaintiff's] original complaint or advanced in a motion to amend.” Tunica-Biloxi Tribe of La. v. United States, 577 F.Supp.2d 382, 411 (D.D.C. 2008) (quotation omitted); Hall v. Dep't of Def., No. CV 19-2354 (RJL), 2021 WL 1026123, at *8 (D.D.C. Mar. 17, 2021) (noting that “it is axiomatic that a party may not amend its complaint or broaden its claims through summary judgment briefing”) (quotation omitted)