UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LOUIS VINCE )

)

Plaintiff, )

)

v. ) Civil No. 12-1465 (RCL)

)

RAYMOND EDWIN MABUS, JR.,

 Secretary of the Navy,

)

)

)

Defendant. )

)

MEMORANDUM OPINION

This matter is before the Court on defendant Raymond Mabus’s Motion to Dismiss, Dec. 

3, 2012, ECF No. 5. Plaintiff Louis Vince, a veteran of the United States Marine Corps, filed a 

Petition for Writ of Mandamus in this Court. Pet. for Writ, Sept. 5, 2012, ECF No. 1. Vince 

asks this Court to order Mabus, as Secretary of the Navy, to produce Vince’s final discharge 

documentation. Defendant has moved to dismiss the Petition under Federal Rule of Civil 

Procedure 12(b)(3) for improper venue and under Rule 12(b)(6) because, inter alia, res judicata 

bars the suit. Upon consideration of defendant’s motion [5], the plaintiff’s Opposition, Jan. 14, 

2013, ECF No. 8, the defendant’s Reply thereto, Jan. 18, 2013, ECF No. 10, and the entire record 

herein, the Court will dismiss plaintiff’s Petition with prejudice, as the preclusive effect of Vince 

v. Mabus, 852 F. Supp. 2d 96 (D.D.C. 2012) bars Vince’s current claims.

I. BACKGROUND

A. Background of the Plaintiff’s Previous Case

The instant case is an extension of Vince v. Mabus, 852 F. Supp. 2d 96 (D.D.C. 2012), in 

which Vince challenged the Board for Correction of Naval Records’ (“Board”) rejection of his 
2

request for a records correction. Vince enlisted in the United States Marine Corps Reserves on 

December 12, 1994. When Vince joined the Reserve Optional Enlistment Program, he agreed to 

serve six years of active duty and two years of inactive duty. His active service agreement 

required “attendance at...forty-eight (48) scheduled drills...and not less than fourteen (14) 

days...of active duty for training during each year of [his] contract.” His signed enlistment 

agreement stated that “failure to attend drills and training periods could result in a less than 

honorable discharge.” Vince, 852 F. Supp. 2d at 98.

For the first few years of the contract, Vince met his training and drill requirements. In 

August 1997, Vince’s wife was diagnosed with cancer. Vince allegedly requested leniency from 

his commanding officers regarding completing the required drills, but his command was 

unwilling to accommodate him. Vince missed several drills to take his wife to chemotherapy. In 

October 2007, Vince’s command warned him that his unauthorized absences could result in 

administrative separation. Vince continued to miss drills in 2008, and as a result Vince’s 

commanding officer commenced separation proceedings. Id.

On December 14, 1998, Vince was administratively separated from the USMCR and the 

characterization of his separation was “Under Other Than Honorable Conditions.”1 Nine years 

later, Vince requested and received a copy of his military personnel records. He then filed a 

request with the Board for Correction of Naval Records to upgrade his discharge to “Honorable.” 

In his request, Vince asserted that (1) he missed drills in order to care for his cancer-stricken 

 1 In the Navy, there are three kinds of administrative discharges. 32 C.F.R. § 724.109. An “Honorable” discharge is 

“contingent upon proper military behavior and performance of duty.” 32 C.F.R. § 724.109(a)(1). A discharge 

“Under Honorable Conditions,” also known as a “General Discharge,” is “contingent upon military behavior and 

performance of duty which is not sufficiently meritorious to warrant an Honorable Discharge.” 32 C.F.R. § 

724.109(a)(2). A discharge “Under Other Than Honorable Conditions” is “issued to terminate the service of a 

member of the naval service for one or more of the reasons/basis listed in the Naval Military Personnel Manual, 

Marine Corps Separation and Retirement Manual and their predecessor publications.” 32 C.F.R. § 724.109(a)(3). 

There is a stigma associated with General and Other Than Honorable discharges. See, e.g., Kauffman v. Sec’y of the 

Air Force, 415 F.2d 991, 995 (D.C. Cir. 1969); Martin v. Donley, 886 F. Supp. 2d 1, 10 (D.D.C. 2012).
3

wife; (2) the separation process was improper because he never had the opportunity to speak on 

his behalf nor is there a separation letter in his file; and (3) he should receive clemency because 

he serves the county as a law enforcement officer. Id. at 98–99.

The Board rejected Vince’s request to review and re-characterize his separation 

characterization. The Board issued a two-page letter stating its decision and explaining that 

although some text in Vince’s military record was illegible, the Board could read enough to 

determine that Vince was on notice of his requirements, that Vince did not respond to warnings, 

that a military lawyer reviewed a separation package, and that the characterization of Vince’s

discharge was normal in cases such as this. The letter also stated that missing drills in order to 

care for his ailing wife was not sufficient to warrant re-characterization of Vince’s discharge 

given the three years of unsatisfactory participation. Id. at 99.

When Vince received the Board’s adverse decision, he petitioned the Board for 

reconsideration. He claimed the Board’s decision was infirm because the Board based its 

decision on incomplete and partly illegible records. In response, the Board denied Vince’s 

application for reconsideration, explaining that he failed to submit any new material evidence 

with his application to warrant a different decision. Vince then filed suit against Raymond 

Mabus, Secretary of the Navy, in federal court under the Administrative Procedure Act (“APA”). 

Vince alleged that the Board’s decision to deny his request was arbitrary and capricious. Id.

On April 19, 2010, Mabus filed a motion for summary judgment. See Def.’s Mot. for 

Summ. J., Civil No. 10-cv-00088 (RWR), ECF No. 3. Over a month passed without any 

response from Vince, so Judge Richard Roberts granted defendant’s summary judgment motion 

as conceded. See Order, Civil No. 10-cv-00088 (RWR), June 7, 2010, ECF No. 4. Thereafter, 

Vince appealed. See Notice of Appeal, Civil No. 10-cv-00088 (RWR), Aug. 8, 2010, ECF No. 
4

5. Upon motion, Judge Roberts reconsidered and vacated his prior Order, thus mooting the 

pending appeal. See Minute Order, Civil No. 10-cv-00088 (RWR), Mar. 28, 2011; Order of 

USCA, Civil No. 10-cv-00088 (RWR), July 6, 2011, ECF No. 18. After vacating his earlier 

Order, Judge Roberts then considered the merits of the defendant’s summary judgment motion.

In a written opinion, Judge Roberts granted summary judgment to the defendant, 

Raymond Mabus. Vince, 852 F. Supp. 2d 98. Reviewing the decision of the Board under a 

deferential standard, Judge Roberts decided the Board’s decision was not arbitrary or capricious. 

He determined that the “Board’s decision addresses all of Vince’s arguments and gives the 

Board’s reasons for its ultimate conclusion.” Id. at 101. Rejecting Vince’s argument that the 

Board relied on an incomplete record—Vince had complained that the administrative record did 

not include his official final discharge documentation—Judge Roberts found that the 

administrative record included “ample documented instances of Vince’s unsatisfactory 

performance” and sufficient evidence to support the Board’s decision. Id. This opinion 

constituted final judgment and Vince did not appeal.

B. Background of the Plaintiff’s Present Case

Approximately six months after Judge Roberts entered final judgment in 10-cv-00088, 

Vince filed a new action in federal district court. In the instant case, brought as a Petition for 

Writ of Mandamus, Vince asks the Court to order defendant Raymond Mabus, Secretary of the 

Navy, to produce a final and official copy of Vince’s discharge documents. Pet. for Writ of 

Mandamus, Civil No. 12-cv-01465 (RCL), Sept. 5, 2012, ECF No. 1. The military uses form 

DD-214 as its official discharge form. Id. at 2. Despite requesting his final DD-214 at least 

seven times from 2007 to 2012, id. at 1–3, Vince claims he never received his final discharge 

papers. Instead, Vince received a non-final DD-214 that clearly indicated that “This is Not a 
5

Final Discharge.” Id. (quoting Ex. A to Pl.’s Pet. for Writ). Vince argues that “the Navy has a 

preemptory, non-discretionary duty” to provide a veteran his final DD-214 form. Id. at 4. 

Vince urges this Court to order the Navy to perform a clear and mandatory duty, and either 

produce Vince’s final DD-214 or explain why it cannot produce it. Id. at 5–7.

II. LEGAL STANDARD

A. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(3) states that the court will dismiss or transfer a 

case if venue is improper or inconvenient in the plaintiff’s chosen forum. FED. R. CIV. P.

12(b)(3). In considering a Rule 12(b)(3) motion, the court accepts as true the plaintiff’s wellpled factual allegations regarding venue, draws all reasonable inferences from those allegations 

in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s favor. 2215 Fifth St. 

Assocs. v. U-Haul Int’l, Inc., 148 F.Supp.2d 50, 54 (D.D.C. 2001). To prevail, the defendant 

must present facts that will defeat the plaintiff’s assertion of venue. Id.

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. 

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To satisfy this test, a complaint must 

contain “a short and plaint statement of the claim showing that the pleader is entitled to relief, in 

order to give the defendant fair notice of what the...claim is and the grounds upon which it 

rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[W]hen ruling on a 

defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained 

in the complaint,” Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and 

grant a plaintiff “the benefit of all inferences that can be derived from the facts alleged,” Kowal 

v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, a court may not 

“accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in 
6

the complaint.” Id. In other words, “only a complaint that states a plausible claim for relief 

survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

B. Writ of Mandamus

Under 28 U.S.C. § 1361, “district courts...have original jurisdiction of any action in the 

nature of mandamus to compel an officer or employee of the United States or any agency thereof 

to perform a duty owed to the plaintiff.” The writ of mandamus is “an extraordinary remedy, to 

be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 

485 U.S. 271, 289 (1988); see also Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 

(1980) (“The remedy of mandamus is a drastic one, to be invoked only in extraordinary 

circumstances.”). Mandamus is proper only if “(1) the plaintiff has a clear right to relief; (2) the 

defendant has a clear duty to act; and (3) there is no other adequate remedy available to 

plaintiff.” Council of and for the Blind of Del. Cnty. Valley v. Regan, 709 F.2d 1521, 1533 (D.C.

Cir. 1983). The party seeking mandamus must show that “its right to issuance of the writ is clear 

and indisputable.” Gulfstream, 485 U.S. at 289 (internal quotations and citations omitted).

C. Res Judicata

Under the doctrine of res judicata, also known as claim preclusion, “a judgment on the 

merits in a prior suit bars a second suit involving identical parties or their privies based on the 

same cause of action.” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004). The doctrine 

embodies the principle “that a party who once has had a chance to litigate a claim before an 

appropriate tribunal usually ought not to have another chance to do so.” SBC Comms. Inc. v. 

FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005) (quoting RESTATEMENT (SECOND) OF JUDGMENTS 6 

(1982) (emphasis in original)). As such, it promotes the “purpose for which civil courts have 
7

been established, the conclusive resolution of disputes within their jurisdictions.” Montana v. 

United States, 440 U.S. 147, 153 (1979).

“Whether two cases implicate the same cause of action turns on whether they share the 

same ‘nucleus of facts.’” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Page v. 

United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). Courts make such a determination by 

looking at “‘whether the facts are related in time, space, origin, or motivation, whether they form 

a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations 

or business understanding or usage.’” I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 

F.2d 944, 949 n.5 (D.C. Cir. 1983) (quoting 1B MOORE’S FEDERAL PRACTICE ¶ 0.410[1] (2d ed.

1983)). The D.C. Circuit’s “transactional” approach “reflects a trend ‘in the direction of 

requiring that a plaintiff present in one suit all the claims for relief that he may have arising out 

of the same transaction or occurrence.’” U.S. Industs. Inc. v. Balke Constr. Co., 765 F.2d 195, 

205 (D.C. Cir. 1985) (quoting 1B MOORE’S FED. PRAC. ¶ 0.410[1]).

Res judicata is an affirmative defense that a defendant generally pleads in his answer.

Defendant may also raise res judicata in a pre-answer Rule 12(b)(6) motion when “all relevant 

facts are shown by the court's own records, of which the court takes notice.” Evans v. Chase 

Manhattan Mortgage Corp., No. 04-2185, 2007 WL 902306, at *1 (D.D.C. Mar. 23, 2007). A 

court may take judicial notice of public records from other proceedings. See, e.g., Covad 

Comms. Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005).

III. DISCUSSION

A. Jurisdiction and Venue

The Court has jurisdiction, under 28 U.S.C. § 1361, to hear this petition for a writ of 

mandamus. The plaintiff claims that venue is proper in the District of Columbia under 28 U.S.C. 
8

§ 1391(e)(1), owing to the allegation that defendant “is an Agency of the United States, located 

in the District of Columbia, and a substantial part of the events or omissions giving rise to the 

claim occurred within the District of Columbia.” Pet. for Writ 1. Defendant argues that venue is 

improper in this District, as “the Secretary of the Navy, the named defendant in this action, 

resides at the Pentagon in Arlington, Virginia.” Def.’s Mot. Dismiss 4 (citing Monk v. Secretary 

of the Navy, 793 F.2d 364, 369 n.1 (D.C. Cir. 1986). The defendant further states that “[n]one of 

the events stated in the complaint occurred in the District of Columbia.” Id.

This Court will not dismiss this case for improper venue pursuant to Federal Rule of Civil 

Procedure 12(b)(3). “Courts have consistently allowed the Secretary of the Navy to be sued in 

the District of Columbia because he performs a significant amount of his official duties in this 

jurisdiction.” Smith v. Dalton, 927 F. Supp. 1, 6 (D.D.C. 1996).

B. Plaintiff’s Petition for Writ of Mandamus is Barred by Res Judicata

This Court will grant defendant’s Rule 12(b)(6) Motion to Dismiss because res judicata 

precludes the plaintiff’s present claims. Vince has repeatedly raised the issue of his file 

“missing” a final DD-214 form in his earlier action, 10-cv-00088, and in the administrative 

proceedings that were the subject of 10-cv-00088. In February 2008, Vince filed a Request for 

Correction/Upgrade of Military Records. See Administrative Record to 10-cv-00088 (RWR) 61–

65 (“Prior Case AR”), Apr. 19, 2010, ECF Nos. 3-2–5. Therein, Vince argued that after he 

received a copy of his personnel records, he found “no letter confirming his separation from the 

military.” Prior Case AR 62. He claimed he “was never discharged appropriately; there is no 

separation letter in his file.” Id. at 63. Yet again, Vince stated that his personnel record “does 

not have a copy of a separation letter.” Id. at 64. Concluding his correction request, Vince 

remarked that his “record does not appear to contain a separation letter.” Id. at 65. Vince 
9

brought up the separation letter four times in his four-and-a-half page corrections request. The 

missing letter was key to his records correction request—he argued that since his personnel file

did not contain a final DD-214, he was discharged wrongfully. Id. at 63–64.

The Board denied Vince’s records correction request and declined to reconsider its 

denial. Thereafter, Vince brought suit in federal court (in an action also against Raymond 

Mabus) claiming that the Board’s decision was arbitrary and capricious. In that action, Vince 

alleged that the Board’s decision was “contradicted and unsupported by Plaintiff’s military 

personnel file.” Compl. ¶ 23, Civil No. 10-cv-00088 (RWR), Jan. 19, 2010, ECF No. 1. In his 

briefing, Vince expanded on this argument and stated that there was “evidence in the 

administrative record indicating that Mr. Vince was not discharged appropriate [sic] (namely, the 

LACK of a separation letter in his file).” Pl.’s Opp’n to Def.’s Mot. Summ. J. 2, Civil No. 10-

cv-00088 (RWR), Apr. 19, 2011, ECF No. 17 (emphasis in original).

According to Vince, in the course of the prior administrative and civil proceedings he 

asked the government for form DD-214 at least seven times. In December 2007, he requested 

from the National Personnel Records Center “his separation documents and personnel records.” 

Pet. for Writ 1. In April 2008, Vince tried to obtain his final DD-214 from the Naval Discharge 

Review Board. Id. at 3. Vince “through counsel, requested copies of the DD-214 from the 

government attorney in the civil actions on, inter alia, February 21, March 31, May 3, July 5, 

and August 2, 2012.” Id. In the course of the prior action, 10-cv-00088, Vince repeatedly 

requested his final DD-214 and raised the issue of his “missing” final separation document.

In his present Petition for Writ of Mandamus, Vince asks for his “final” DD-214, with the 

assumption that such a document exists. However, in the course of the prior administrative and 

civil proceedings, the Navy claimed that had no such document. On December 3, 2007, the 
10

National Personnel Records Center sent a letter to Vince which stated: “A DD Form 214, Report 

of Separation, was not issued because [Vince] had no active service or less than 90 consecutive 

days of active duty for training.” Prior Case AR 85. This Court will not revisit whether the 

Navy was right to give this response. As evident in the record of 10-cv-00088, the subject of 

whether some pivotal discharge document—to which Vince was entitled—was missing from 

Vince’s personnel file came before the Navy Records Correction Board and Judge Roberts. 

Prior AR 61–65; Pl.’s Opp’n to Def.’s Mot. Summ. J. 2. Neither the Board nor Judge Roberts 

found availing Vince’s arguments that he was entitled to a final DD-214, and absent one he was 

unlawfully given a Less Than Honorable discharge. Prior Case AR 98–99; Vince v. Mabus, 852 

F. Supp. 2d at 101. The present mandamus petition, which assumes that such a final DD-214 

exists (or should exist) for Vince, is a backdoor way to challenge the Navy’s response that it 

issued no final DD-214 because Vince had insufficient active duty or training, and to challenge 

the Board and Judge Roberts’s rulings that the documents included in Vince’s file were sufficient 

to sustain his separation and discharge characterization. Vince’s arguments that he was entitled 

to an official DD-214 form, and the Navy’s response thereto, were considered as part a civil case 

in which final judgment has been entered.

Vince argues that “the present action is not barred by res judicata because it does not 

concern the same claim or cause of action as Mr. Vince’s prior actions.” Pl.’s Opp’n to Def.’s 

Mot. Dismiss 3 (emphasis omitted). He claims the “Petition for Mandamus does not arise from 

any issues litigated previously or any of the facts relied on by the court(s) in denying...relief,” 

but instead “concerns an ongoing non-discretionary duty to provide [ ] Vince with his final DD 

form 214 so that he may have accurate records of his service.” Id. at 4. He elaborates:

Mr. Vince was not only entitled to the DD Form 214 at the time of discharge, but 

also at any time in the future upon written request. While the prior actions arose 
11

from Mr. Vince’s alleged improper discharge and/or discharge characterization, 

this action arises from the Agency’s failure to provide him with documentation to 

which he is entitled to receive at any time.

Id. at 5 (emphasis in original). His earlier case concerned challenging a discretionary action of 

the Board—correcting military records—while this case concerns an ongoing and nondiscretionary duty owed by the defendant—providing official separation documents. Id.

This argument is unpersuasive. The question is not whether the cause of action in this 

case is identical to the cause of action in the prior case. See Apotex, Inc. v. F.D.A., 393 F.3d 210, 

217–18 (D.C. Cir. 2004) (issue is not whether causes of action are “identical”; plaintiff cannot 

bring new suit by “simply raising new legal theory”). Instead, a court should consider “whether 

the facts are related in time, space, origin, or motivation, whether they form a convenient trial 

unit, and whether their treatment as a unit conforms to the parties’ expectations.” 1B MOORE’S 

FED. PRAC. § 0.410[1]. Vince had his chance, in the prior proceedings, to press his entitlement to

final separation papers. Re-characterizing this dispute as an issue of “mandamus” does not 

entitle him to another bite at the apple. Cf. Smalls v. United States, 471 F.3d 186, 192–93 (D.C. 

Cir. 2006) (“Under the transactional approach to determining whether two suits involve the same 

cause of action, the cause of action consists of all rights of the plaintiff to remedies against the 

defendant with respect to all or any part of the transaction, or series of connected transactions, 

out of which the action arose.” (internal citations and quotation marks omitted)); Havens v. 

Mabus, 892 F. Supp. 2d 303, 313 (D.D.C. 2012) (“The claim plaintiff seeks to bring here 

concerns exactly the same events that he challenged in the Court of Federal Claims—his 

discharge from active duty and the subsequent decision of the Physical Evaluation Board that 

found plaintiff not physically qualified for active duty. So regardless of the fact that this 

challenge seeks review of an agency decision under the APA and the Constitution, whereas the 
12

previous challenge sought monetary benefits, the two cases involve the same cause of action as 

contemplated under the doctrine of res judicata.”).

2

The issue of the “missing” DD-214 was integral to Vince’s earlier proceedings. He 

argued that his discharge was unlawful absent final discharge papers to which he was entitled, 

and thus a correction was needed to upgrade his discharge characterization. Prior Case AR 61–

65. Vince asked for his DD-214 several times before, and during, the prior APA case. Pet. for 

Writ 1–3. He could have brought any claims relating to the non-production of his DD-214

during that case. See Drake, 291 F.3d at 66 (“[U]nder res judicata, ‘a final judgment on the 

merits of an action precludes the parties...from relitigating issues that were or could have been 

raised in that action.’”) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)) (emphasis in 

original). Judge Roberts would have had jurisdiction to hear those issues as part of the earlier 

case. Prior to bringing suit, Vince had twice unsuccessfully requested a final DD-214, and had 

received the Navy’s response that it did not produce a final DD-214 for him. See Pet. for Writ 

1–3; Ex. A to Pet. for Writ. His claims are not “based on facts not yet in existence at the time of 

the original action.” Drake, 291 F.3d at 66.

Vince cannot manufacture new “facts not yet in existence at the time of the original 

action,” id., by simply requesting his final discharge papers anew. Whether the Navy should 

have provided Vince a final DD-214 after his discharge (or his December 2007 personnel records 

request) is a matter Vince could have joined in the prior action, as it arose out of the same 

transaction at issue in the earlier case. Subsequent, repetitive requests do not create “new” 

transactions for the purpose of evading preclusion. See Keys v. Dep’t of Homeland Sec., 2009 

 2 Vince cited both of these cases for support. Pl.’s Opp’n to Def.’s Mot. Dismiss 3. As seen supra, these cases do 

not support his position.
13

WL 614755, *3–*4 (D.D.C. Mar. 10, 2009) (in Freedom of Information Act action, repetitive 

post-suit requests were barred by res judicata).

Vince claims—in a Sur-Reply impermissibly filed without requesting leave of court—

that he “could not have raised the present Mandamus action at the same time as his prior 

litigation.” Pl.’s Sur-Reply 3, Feb. 7, 2013, ECF No. 11. A court can only grant mandamus 

relief where “there is no other adequate remedy available to the plaintiff.” In re Medicare Reim. 

Litig., 414 F.3d 7, 10 (D.C. Cir. 2005). Vince argues, “while [his] action for re-characterization 

of his...discharge was pending, an adequate remedy, i.e., upgraded discharge and documentation 

there of [sic], remained available to Mr. Vince.” Pl.’s Sur-Reply 3. 

This argument is self-defeating. Elsewhere, Vince distinguishes his records correction

request from his records production request. He claim he does not seek his DD-214 merely to 

challenge, yet again, his discharge characterization. Instead, form DD-214 is “important during 

a member’s transition to civilian life,” and assists in “in employment placement,” “job 

counseling,” and administering benefits. Pl.’s Opp’n to Def.’s Mot. Dismiss 4–5 (internal 

citations and quotation marks omitted). The form has independent value, and “[w]hile the prior 

actions arose from Mr. Vince’s alleged improper discharge..., this action arises from the 

Agency’s failure to provide him with documentation to which he is entitled to receive at any 

time.” Id. at 5. If this is so, then how would a favorable ruling on his APA claims provide an 

adequate remedy? 3 Vince’s Writ of Mandamus concerns the production of a particular 

document; the available remedy is ordering the production of a final DD-214 form for Vince. If 

the Court could have resolved Vince’s APA case in a way that required production of the form—

 3 Furthermore, Vince’s arguments about the Navy’s mandate to provide a final DD-214 and the form’s importance 

assume either that the form exists or that Vince is entitled to one. As discussed supra, this challenges the Navy’s 

statement in 2007 that it did not prepare a final DD-214 for Vince—an issue raised and considered in the course of 

the prior litigation.
14

providing an adequate remedy for his mandamus claims—then his current request for his 

separation papers was part of that earlier APA case. On the other hand, if the “adequate remedy” 

sought was the correction/upgrade of his discharge classification, then the mere production of 

form DD-214 has no independent value to Vince and cannot form the basis of a separate action.

The record contained in Civil No. 10-cv-00088 makes clear that Vince thought some

“missing” separation document was key to that case. He argued that his service entitled him to a 

final DD-214, and the form’s absence demanded correction of his discharge records and a 

reversal of the Board’s adverse decision. See Prior Case AR 61–65; Pl’s Opp’n to Def.’s Mot. 

Summ. J. 2. His current dispute about his right to a final DD-214 clearly arises out of the same 

‘nucleus of facts’ as the earlier case. Vince should have and could have raised these disputes—

including requesting a court order that he was entitled to a final DD-214—in the prior litigation. 

Vince cannot sit on his mandamus claims and only raise them after he suffered an adverse 

decision in Vince v. Mabus, 852 F. Supp. 2d 96.

This Court will dismiss the action with prejudice. The court may dismiss a claim with 

prejudice when amending the complaint would be futile. See Firestone v. Firestone, 76 F.3d 

1205, 1209 (D.C. Cir. 1996) (dismissal with prejudice appropriate when “the allegation of other 

facts consistent with the challenged pleading could not possibly cure the deficiency”) (internal 

punctuation omitted); Carty v. Author Solutions, Inc., 789 F. Supp. 2d 131, 135–36 (D.D.C. 

2011) (dismissal with prejudice appropriate when “amended complaint would suffer from the 

same flaw as the original complaint”). To evade claim preclusion and survive a subsequent 

motion to dismiss, the plaintiff would need to draft an essentially different complaint, making 

amendment futile. If a court dismisses a claim with prejudice, res judicata blocks refilling that 

claim. Ciralsky v. C.I.A., 355 F.3d 661, 669–70 (D.C. Cir. 2004). This Court will dismiss 
15

Vince’s claims with prejudice—to make clear that res judicata applies to this Court’s ruling that 

res judicata applies to Vince’s mandamus claims.

IV. CONCLUSION

In his efforts to have the Navy upgrade his “Under Other Than Honorable Discharge” 

separation classification to “Honorable,” plaintiff has repeatedly raised the issue of his “missing” 

DD-214 form. He did so in his records correction application to the Board for Correction of 

Naval Records. He did so in federal district court when challenging the Board’s decision to deny 

his request as arbitrary and capricious. During the course of the prior civil and administrative 

proceedings, Vince requested his final DD-214 form from the government at least seven times, 

arguing that he was entitled to a final DD-124. His current action—a petition for a writ of 

mandamus ordering the production of his final discharge papers—arises from the same nucleus 

of facts as the prior case, and is therefore precluded by res judicata. This Court will grant 

defendant’s Rule 12(b)(6) motion and dismiss plaintiff’s petition for a writ of mandamus with 

prejudice.

A separate Order consistent with this Memorandum Opinion shall issue this date.

Signed by Royce C. Lamberth, United States District Judge, on July 24, 2013.