GLADYS KESSLER, District Judge.
Plaintiff, Marine Corps Maj. Jackson L. McGrady, brings this action pursuant to 10
This matter is presently before the Court on Defendants' Motion for Summary Judgment ("Defs.' Mot.") (July 25, 2006) [Dkt. No. 42] and Plaintiff's Cross Motion for Summary Judgment ("Pl.'s Mot.") (Aug. 25, 2006) [Dkt. No. 44]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Defendants' Motion for Summary Judgment is
On November 26, 1990, Plaintiff, who was then a First Lieutenant, received a performance review from Capt. Dennis Davidson for the four-month period beginning on August 1, 1990 and ending on November 26, 1990 ("Davidson Report"). AR at 396-97. The Davidson Report ranked Plaintiff "3 of 3," indicating he was the poorest performer compared to the two other officers under simultaneous review. AR at 396-97. Despite his low ranking, Plaintiff subsequently earned promotions to captain and then major. AR at 284-87.
On December 3, 1998 the Marine Corps issued Order ("MCO") P1610.7E, which modified the Performance Evaluation System for Marine Corps officers and called for a reduction in grade inflation. MCO P1610.7E, Pl. Ex. 8 (Aug. 25, 2006) [Dkt. No. 44-8]. Shortly thereafter, on August 3, 1999, Plaintiff received a performance review from Col. Francis Scovel for the period covering September 1, 1998 through March 15, 1999 ("Scovel Report"). AR at 584-588. In his review, Col. Scovel indicated that Plaintiff was among the "top 5% of majors [Scovel had] observed in [his] 22 years of service." Id. On the basis of his understanding at the time of MCO P1610.7E, Col. Scovel ranked Plaintiff fifth out of eight, with eight being the highest score possible. Id.
On July 12, 2002, the Commandant of the Marine Corps ("CMC")
In response to this decision, Plaintiff consulted Lt. Col. D. Crowl regarding his military record. Id. ¶¶ 6,8. In evaluating Plaintiff's record, Lt. Col. Crowl identified inconsistencies in the Scovel Report and informed Plaintiff that negative inferences could be drawn from the Davidson Report. Id. ¶ 8; AR at 119-20, 479.
Based on Lt. Col. Crowl's comments, Plaintiff sought to obtain a letter from Captain Davidson to "ameliorate any negative inferences" that could be drawn from the Davidson Report. Pl.'s Stmt. of Facts ¶ 10. On April 3, 2003, Plaintiff obtained a letter from Capt. Davidson stating that he "should have ranked [Plaintiff] 1 of 3" in his performance review but failed to do so, for reasons unrelated to Plaintiff's performance. AR at 22. Specifically, Capt. Davidson explained that:
Id.
Based on Davidson's letter, Plaintiff filed an application to the Board for Correction of Naval Records ("BCNR")
On September 2, 2003, Plaintiff received a letter from Col. Scovel regarding the Scovel Report ("2003 Scovel letter"). AR at 535-36. Col. Scovel explained that, although Plaintiff was in the "top 5%" of majors, he ranked Plaintiff 5 out of 8 based on the understanding of MCO P1610.7E he had at the time. Id. Col. Scovel also stated that, if he were to evaluate Plaintiff based on current procedures,
Id.
In light of the amended Davidson Report, on September 16, 2003, Plaintiff requested the Secretary convene a SSB to consider Plaintiff for promotion to Lieutenant Colonel. AR at 1-23. While Plaintiff's SSB request was pending, the FY 2005 Lieutenant Colonel Selection Board ("FY 2005 Selection Board") considered Plaintiff for a promotion. In connection with that proceeding, Plaintiff provided the Board with a copy of the 2003 Scovel letter. Pl.'s Stmt. of Facts ¶ 47. On January 6, 2004, Plaintiff learned that the FY 2005 Selection Board denied his promotion to Lieutenant Colonel. Id.
On February 16, 2004, the CMC recommended denying Plaintiff's pending SSB request. AR at 28-29. On April 16, 2004, and without further comment, the Secretary adopted the CMC's recommendation and denied Plaintiff's SSB request. AR at 75.
On December 9, 2004, Plaintiff submitted a request to BCNR to amend the Scovel Report to reflect a ranking of "7 out of 8" instead of "5 out of 8." AR at 582-83. On January 28, 2005, CMC, through PERB, recommended denying Plaintiff's record change application, noting that Scovel's performance evaluation was correct at the time it was written and that the 2003 Scovel letter was only an endorsement for promotion and not an official request to change Plaintiff's record. AR at 465-66. On March 22, 2005, Plaintiff responded to PERB's recommendation and requested an SSB based on the FY 2005 Selection Board's consideration of the unamended Scovel Report.
On February 7, 2005, Plaintiff submitted a request to the Secretary for reconsideration of the April 16, 2004 denial of his SSB request. AR 34-180. On July 25, 2005, CMC recommended that Plaintiff's SSB reconsideration request be "disallowed." AR at 182-85. On August 17, 2005, Plaintiff filed a Complaint seeking judicial review of the Secretary's denial of his SSB reconsideration request. Although, at the time, the Secretary had not issued an actual decision on Plaintiff's request, Plaintiff argued that the reconsideration request should be "deemed denied" under applicable statutory provisions.
On September 2, 2005, the Secretary, through BCNR, denied Plaintiff's request
Plaintiff filed an Amended Complaint on May 11, 2006 [Dkt. No. 34]. On June 21, 2006, Defendants filed an Answer to the Amended Complaint [Dkt. No. 38]. On July 25, 2006, Defendants filed a Motion for Summary Judgment. On August 25, 2006, Plaintiff filed a Cross Motion for Summary Judgment as well as a Memorandum in Opposition to Defendants' Motion for Summary Judgment [Dkt. No. 45]. On October 20, 2006, Defendants filed an Opposition to Plaintiff's Cross Motion for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment [Dkt. No. 49]. On November 13, 2006, Plaintiff filed a Reply to Defendants' Opposition to Plaintiff's Motion for Summary Judgment [Dkt. No. 51].
Judicial review in this case is based upon the APA and 10 U.S.C. § 628, which provides federal courts with jurisdiction to review military agency actions relating to SSBs. Both statutes accord substantially similar levels of deference to military administrative actions. See Homer v. Roche, 226 F.Supp.2d 222, 225 (D.D.C.2002) (holding that "the standard adopted by § 628(g) largely echoes that found in the APA").
In reviewing military agency action, a court may set aside a decision if it is arbitrary or capricious, not based on substantial evidence, the result of material errors of fact or a material administrative error, or is otherwise contrary to the law. 5 U.S.C. § 706(2); 10 U.S.C. § 628(g)(1)(A). In conducting its review, the court employs an "unusually deferential application of the `arbitrary and capricious' standard...." Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989). As our Court of Appeals has held "[p]erhaps only the most egregious decisions may be prevented under such a deferential standard of review." Id. at 1515.
To survive judicial review, the military agency's decision "must give a reason that a court can measure, albeit with all due deference, against the `arbitrary or capricious' standard of the APA." Id. at 1514-15. The court will set aside an agency decision "only when the record is so compelling that no reasonable fact finder could fail to find to the contrary" Lakeland Bus Lines, Inc., v. NLRB, 347 F.3d 955, 961 (D.C.Cir.2003).
Plaintiff has the burden of proving by "`cogent and clearly convincing evidence' that the [military administrative] decision was the result of a material legal error or injustice." Cochrane v. Wynne, 541 F.Supp.2d 267, 271 (D.D.C.2008) (citation and internal quotations omitted). To satisfy this burden, plaintiff must "overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith." Frizelle v. Slater, 111 F.3d 172, 177 (D.C.Cir.1997) (citation and internal quotations omitted).
When review is based upon the administrative record, "[s]ummary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision...." Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995). The court must limit its review to the administrative record, which "includes all materials compiled by the agency that were before the agency at the time the decision was made." James Madison Ltd.
Plaintiff seeks judicial review of the following administrative actions: (1) the Secretary's September 2, 2005 denial of Plaintiff's request to correct the Scovel Report and accompanying request to convene an SSB, Am. Compl., Count 3-4; and (2) the Secretary's denial of Plaintiff's SSB reconsideration request based on the Davidson Report error, id. at Counts 1-2.
The Secretary denied Plaintiff's request to correct the Scovel Report on the grounds that the Report "was both administratively correct and procedurally complete as written and filed." AR at 465, 651. In seeking judicial review of this conclusion, Plaintiff argues that the Secretary's decision was: (1) contrary to law; and (2) not based on substantial evidence.
MCO 1610.7E provides the legal basis for the Secretary's conclusion that the Scovel Report was "administratively correct and procedurally complete" when written. In this regard, the Secretary concurred in PERB's determination that "[n]othing in MCO 1610.7E provides reporting officials with the advantage of hindsight, combined with subsequent years of service and observations, to change previously assigned evaluative grades or comparative assessments." AR at 465.
Plaintiff claims that this holding is contrary to law because another section of MCO 1610.7E, Paragraph 8002.1(e), requires amending the Scovel Report, Pl.'s Mot. 48-51:
MCO 1610.7E, ¶ 8002.1(e)(2)(a). Plaintiff argues that the Scovel Report's alleged error violates Paragraph 8002.1(e)(2)(a) and that the Secretary, therefore, acted contrary to law by failing to amend the Report. Pl.'s Mot. 50. However, as Defendants correctly argue, the clear and plain language of Paragraph 8002.1(e) merely cautions officers to maintain consistent grading philosophies and does not suggest that a change in grading philosophy serves as a basis for amending a performance evaluation.
Moreover, the Secretary's interpretation of MCO 1610.7E is consistent with Marine Corps regulations governing requests to correct performance evaluations,
For these reasons, Plaintiff has failed to demonstrate that the Secretary's decision is contrary to law.
In challenging the Secretary's decision on the grounds of substantial evidence, Plaintiff argues that the Secretary's denial
Plaintiff does not present any other arguments suggesting that the Secretary's decision is not supported by substantial evidence, which is defined as "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Smith v. Dalton, 927 F.Supp. 1, 5 (D.D.C.1996) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir.1989)). In fact, a review of the record demonstrates that PERB's recommended denial of Plaintiff's request as well as BCNR's adoption of that recommendation were based on substantial evidence.
In sum, Plaintiff has failed to demonstrate that the Secretary's decision is not supported by substantial evidence in the record.
In declining to convene an SSB based upon the Scovel Report, the Secretary noted that since "there was no defect in the Scovel Report, there was no basis for granting an SSB on those grounds. AR at 652. This conclusion is consistent with 10 U.S.C. § 628, which allows the Secretary to convene an SSB only where there has been "material unfairness:"
Id. at § 628(b)(1). Because the Secretary did not act arbitrarily or capriciously in concluding that there was no error in the Scovel Report, the Court concludes that the Secretary's decision not to convene an SSB was also proper.
For the foregoing reasons, the Court concludes that Plaintiff has failed to show
Plaintiff raises two challenges to the Secretary's denial of Plaintiff's SSB reconsideration request. First, Plaintiff argues that the Secretary's February 23, 2006 decision should not be considered. Second, Plaintiff argues that the denial of his SSB reconsideration request was arbitrary and capricious and not based on substantial evidence. The Court will consider each of these arguments in turn.
Plaintiff presents two arguments as to why the February 23, 2006 decision should not be considered by the Court. First, Plaintiff claims there was a final agency decision on his SSB reconsideration request on August 9, 2005 when Plaintiff's request was "deemed denied" pursuant to 10 U.S.C § 628(g).
With regard to his first argument, Plaintiff is incorrect that 10 U.S.C § 628(g) applies to SSB reconsideration requests. Under that statutory provision, "[i]f, six months after receiving a complete application for consideration by a special selection board under this section in any case, the Secretary concerned has not convened such a board and has not denied consideration by such a board in that case, the Secretary shall be deemed for the purpose of this subsection to have denied the consideration of the case by such a board." 10 U.S.C. § 628(g)(3)(A). The plain language of the statute makes clear that the six-month limitation period applies to initial requests to convene an SSB and nowhere suggests that that limitations period also extends to requests to reconsider previous SSB denials.
With regard to his second argument, Plaintiff has failed to show that the February 23, 2006 decision is an impermissible post-hoc rationalization issued merely for the purposes of litigation. As the case law makes clear, the rule barring consideration of post-hoc agency rationalizations applies "where an agency has provided a particular justification for a determination at the time the determination is made, but provides a different justification for the same determination when it is later reviewed by another body." Independence Mining Co. v. Babbitt, 105 F.3d 502, 511 (9th Cir.1997).
Plaintiff argues that the February 23, 2006 decision constitutes a post-hoc rationalization because it issued several months after Plaintiff originally sought review in this Court and because it denied Plaintiff's reconsideration request on grounds not contained in the Secretary's April 16, 2004 decision. Pl.'s Mot. 4-7, 22. While Plaintiff is correct about the timing of the Secretary's February 23, 2006 decision, Plaintiff is incorrect that the grounds for dismissal contained in that decision constitute a post-hoc rationalization. The February 23, 2006 decision
For these reasons, the Court concludes that the February 23, 2006 decision is the final agency decision on Plaintiff's SSB reconsideration request and is properly considered by the Court.
Plaintiff argues that the Secretary acted arbitrarily and capriciously in concluding that the Davidson Report error did not constitute material unfairness and that Plaintiff failed to exercise reasonable diligence. Pl.'s Mot. 20-44. The Court reviews Plaintiff's challenge under 10 U.S.C. § 628(b).
On the issue of material unfairness, the Secretary's February 23, 2006 decision concluded that:
AR Vol. I at 2-3.
Plaintiff raises several challenges to the Secretary's finding of no material unfairness. First, Plaintiff argues that the Secretary's conclusion contradicts the BCNR's August 26, 2003 decision to correct the Davidson Report. Pl.'s Mot. 22-24. Second, Plaintiff argues that the Secretary's April 16, 2004 decision already conceded the issue of material unfairness. Id. at 21-22. Third, Plaintiff argues that the Secretary's February 23, 2006 decision is not substantially supported by the evidence. Id. at 24-29.
With regard to the BCNR's August 26, 2003 decision, the record shows that the BCNR made no ruling on material unfairness, nor did it in any other way conclude that the Davidson Report was "material"
With regard to the issue of substantial evidence, the Secretary based his conclusion on the following key pieces of evidence: (1) the BCNR's August 26, 2003 decision
On the issue of reasonable diligence, the Secretary's February 23, 2006 decision concluded that:
AR Vol. I at 3.
In accordance with 10 U.S.C. § 628 as well as applicable military regulations, the Secretary's authority to convene an SSB for material unfairness depends upon petitioner's exercise of reasonable diligence in discovering any material errors or mistakes. See Department of Defense Instruction 1320.11 (directing that an SSB "shall not ... consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion").
In challenging the Secretary's decision on this issue, Plaintiff raises several arguments. First, Plaintiff argues that the Secretary's decision on reasonable diligence contradicts the BCNR's August 26, 2003 decision that Plaintiff's record change request was timely. Pl.'s Mot. 39. Second, Plaintiff argues that the Secretary's decision ignores substantial evidence that Plaintiff had no reasonable basis to question the accuracy of the Davidson Report prior to 2003. Id. at 32-43. Third, Plaintiff argues that the Secretary's decision fails to identify "objective factors" used to identify reasonable diligence. Id. at 29-32.
With regard to the BCNR's August 26, 2003 decision, Plaintiff has failed to show that the BCNR's ruling on timeliness conflicts with the Secretary's ruling on reasonable diligence. In its August 26, 2003 decision, the BCNR held that Plaintiff's petition to amend the Davidson Report was timely even though it was filed some thirteen years after the Davidson Report was issued. Pl.'s Mot. 39.
With regard to substantial evidence, the Secretary's decision was based on the following facts: (1) during the twelve years between the issuance of the Davidson Report and the FY 2004 Selection Board Plaintiff was aware of his "3 of 3" ranking; and (2) Plaintiff did not question the ranking's accuracy until after he was denied promotion by the FY 2004 Selection Board.
For similar reasons, the Secretary's decision demonstrates the "objective factors" used for determining whether Plaintiff exercised reasonable diligence.
For the foregoing reasons, the Court concludes that the Secretary did not act arbitrarily or capriciously in denying Plaintiff's SSB reconsideration request based on the Davidson Report.
For all the reasons stated herein, Defendants' Motion for Summary Judgment is
AR at 482.
First, Plaintiff argues that because the Davidson and Scovel Reports "are similar in that the marks unfairly color Plaintiff's performance" the Secretary should have accorded them the same treatment and amended the Scovel Report. Pl.'s Mot. 51. However, as Plaintiff himself points out, the basis for the alleged error in the Davidson Report (Davidson's falsification of Plaintiff's ranking) was different from the reason Plaintiff presented for amending the Scovel Report (a change in Scovel's grading philosophy). Accordingly, Plaintiff is incorrect in characterizing the Reports as similar and deserving of the same treatment.
Second, Plaintiff argues that because the Secretary has allowed Plaintiff to continue submitting Col. Scovel's retraction letter to future selection boards, the Secretary has admitted that the Scovel Report is unfair and inaccurate. Id. at 53. Plaintiff has no basis for reaching this conclusion as the Secretary's decision to permit Plaintiff to continue presenting Scovel's letter is in accordance with Navy regulations and established BCNR practice. Mueller v. Winter, 485 F.3d 1191, 1199 (D.C.Cir.2007). Moreover, "[w]here the BCNR has no more evidence than it had here to determine whether a reviewer changed his report out of sympathy for a disappointed officer, there is nothing arbitrary about retaining both [documents] and permitting future promotion boards to give each [] the credit they believe it deserves." Id. at 1199.
Third, Plaintiff argues that the BCNR was prohibited from affirming PERB's recommended denial of Plaintiff's request because PERB applies a higher burden of proof than BCNR. Pl.'s Mot. 54. Plaintiff is correct that a different burden of proof is required by the two boards. See MCO 1610.11C, ¶ 10a (PERB may recommend amending an officer's record where the "applicant presents an amount of relevant evidence tending to prove that the allegations contained in the application are more likely true than not"); 32 C.F.R. § 723.3(e)(2) (in deciding record change requests BCNR "relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties"). Nevertheless, Plaintiff has cited no statute, regulation, or other authority establishing that the BCNR is prohibited from affirming a PERB decision on a record change application. In the absence of authority, this Court should not intrude upon the regulatory framework that Congress and the military have established for review of military personnel matters. Kreis, 866 F.2d at 1511.
Appeals supported by statements from reporting officials who in retrospect, attempt to refute specific deficiencies cited by them in the contested report(s) are not usually approved. Specific evidence of error in judgment, misinterpretation of facts and circumstances, and so on, must be provided. Statements that merely allude to changed perspectives following some unfavorable event (non selection for promotion, regular appointment, professional schooling, etc.) that may be attributable to the report(s) are of little value.
AR at 465.
In affirming PERB's recommendation, the BCNR also noted the evidence it reviewed prior to reaching its determination: (1) Plaintiff's original record change application, all documents submitted in support thereof, and Plaintiff's naval record; (2) applicable statutes, regulations and policies; and (3) Plaintiff's rebuttal letters, dated March 22, 2005 and August 26, 2005, to the PERB recommendation, as well as attachments thereto. AR at 651.
AR Vol. I at 31.
