ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Maurice B. Pettiford, a retired Gunnery Sergeant (pay grade E-7) in the United States Marines Corps, brings this action under the Administrative Procedure Act, 5 U.S.C. § 701, et seq., against the Secretary of the Navy, seeking review of the May 18, 2010 decision of the Board for Correction of Naval Records ("BCNR" or "Corrections Board").
Plaintiff seeks an order setting aside both decisions and directing the Secretary of the Navy to correct his record to show that he was promoted to pay grade E-8 as of 1999. In the alternative, he seeks an order remanding the case for further proceedings before either the Remedial Selection Board (if both decisions are set aside) or the Corrections Board (if only that decision is set aside). The matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons explained herein, plaintiff's claim for remedial promotion will be dismissed, the May 18, 2010 decision of the BCNR will be set aside, and the case will be remanded to the BCNR for further proceedings in accordance with this opinion.
The administrative record in this case is extensive and convoluted, but as plaintiff's Fourth Amended Complaint is limited to his contention that he should have been promoted to either Master Sergeant or First Sergeant, pay grade E-8, retroactive to Calendar Year ("CY") 1999 by the May 8, 2008 ERSB decision or the May 18, 2010 BCNR decision, only the facts and procedural history that bear directly on that claim are set forth herein.
On March 31, 1994, after failing to be promoted to Gunnery Sergeant by the regular Selection Board, plaintiff petitioned the BCNR to have certain material relating to a 1992 disciplinary action removed from his file and, once the material was removed, for reconsideration for promotion by the Remedial Selection Board. (AR 610.)
As a general matter, the Remedial Selection Board, which is "constituted by authority of the Commandant," is "an advisory board that provides advice to the Commandant of the Marine Corps on Staff Noncommissioned Officer remedial promotion cases." (AR 341.) It is "authorized to review all Marine enlisted personnel records referred to it for the purpose of making recommendations concerning remedial promotion to the [Staff Noncommissioned Officer] grades." (AR 341.) The BCNR, which is composed of civilians appointed by the Secretary of the Navy, "may correct any military record. . . when [the Secretary of the Navy acting through the Board] considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a).
On December 12, 1995, the BCNR recommended that the Secretary grant full relief, and on April 11, 1996, that recommendation was approved and the Secretary ordered the 1992 material redacted from plaintiff's file. (AR 597-98.) On May 1, 1996, plaintiff requested consideration for remedial promotion for 1993, 1994 and 1995. (AR 611-17.) It was while plaintiff was awaiting a decision on that request that the 1996 regular Selection Board, with plaintiff's corrected record before it, promoted him, effective July 1, 1996. (AR 598-99.) On June 27, 1996, however, the Remedial Selection Board decided not to recommend remedial promotion. (AR 590; Def.'s Facts ¶ 5, 7; 4th
In 2001, after the 2000 and 2001 regular Selection Boards had failed to promote him to either First Sergeant or Master Sergeant, plaintiff discovered that an electronic document that reflected the 1992 disciplinary action that the Corrections Board had previously ordered redacted still remained in his record. (4th Compl. ¶ 13; Def.'s Facts ¶ 11.) Thus, plaintiff petitioned the BCNR to request removal of this document. (AR 428-433.) He also requested that his promotion to Gunnery Sergeant be backdated to 1993, and that the BCNR promote him to Master Sergeant without referring him back to the Remedial Selection Board. (AR 428-33, 471.) On May 30, 2001, the BCNR informed plaintiff that, effective May 23, 2001, all references to plaintiff's 1992 disciplinary infraction had been removed from the electronic version of his record and, therefore, that he could seek remedial consideration "for all selection boards that may have been affected" by the information. (AR 276, 422.) On July 2, 2001, plaintiff submitted his request for remedial promotion to Gunnery Sergeant as of 1993 and, if granted, remedial promotion to Master Sergeant for the appropriate year. (AR 274.)
On August 29, 2001, the Remedial Selection Board recommended that plaintiff be remedially promoted to Gunnery Sergeant as of November 1, 1994, a recommendation that was approved on August 31, 2001. (AR 52, 55, 57.) Based on this revised promotion date, plaintiff would have been eligible for promotion to First Sergeant or Master Sergeant before the regularly scheduled 1999 Selection Board, so the Remedial Selection Board proceeded to consider whether to recommend plaintiff for calendar years 1999, 2000 and 2001. On November 16, 2001, though, the Remedial Selection Board decided not to recommend remedial promotion for 1999, 2000 or 2001. (AR 65-71.) Plaintiff thereafter requested relief from the BCNR. (AR 170-173.) After the BCNR denied relief on May 6, 2004 (AR 166), plaintiff filed his initial complaint in this Court. (Compl., Oct. 24, 2005.)
Since plaintiff filed his initial complaint, there have been additional administrative proceedings before both the Remedial Selection Board and the BCNR. Only the Remedial Selection Board's most recent decision, issued on May 8, 2008,
On May 5, 2008, the Commandant issued a precept convening the Remedial Selection Board for May 8, 2008 (AR 1062-64), and on May 8, 2008, the Remedial Selection Board convened to consider 13 Marines of differing ranks, including plaintiff, who had been identified as "eligible . . . for remedial consideration for promotion" (AR 1052-53, 1058-59) and to decide whether to recommend each "for promotion to the next higher grade." (AR 1053.) Of the Marines under consideration, plaintiff was the only one being considered for remedial promotion as of calendar year 1999, 2000 or 2001.
Three documents were to guide the May 8, 2008 Remedial Selection Board's decision-making process: (1) Marine Corps Order ("MCO") 5420.16C (AR 347); (2) the "Precept Convening the CY 1999 Sergeant Major Through Master Sergeant Selection Board" (AR 1066-76 ["1999 Precept"]); and (3) the May 5, 2008 "Precept Convening the Enlisted Remedial Selection Board" for May 8, 2008 (AR 1062-64 ["2008 Remedial Precept"]).
(AR 346 (emphasis added).)
(AR 1067 (emphasis added).)
(AR 1063 (emphasis added).) The "Performance Index (PI) rating system was the performance evaluation system in use during 1999." (AR 128.) It "calculates the value of fitness report marks in a Marine's current grade not to exceed five years. PI ratings can fall anywhere between 9.00, being the highest, to 6.50, being the lowest." (AR 128.)
In considering plaintiff for remedial promotion, the Remedial Selection Board had before it plaintiff's Performance Index rating (8.95), the range of Performance Index ratings for the Marines considered for promotion to either Master Sergeant or First Sergeant by the 1999 regular Selection Board (all but two of the Marines recommended for promotion had ratings between 8.80-9.00, as did many Marines not recommended for promotion), but not any particular Marine's Performance Index rating, plaintiff's Official Military Personnel File,
Following the Remedial Selection Board's May 8, 2008 decision, plaintiff applied to the BCNR, asking it to "correct" his record to show that he was promoted by the 1999 regular Selection Board. (Def.'s Facts ¶ 28; AR 15-16.) On May 18, 2010, the BCNR denied relief.
Prior to its consideration of plaintiff's case, the BCNR sought an advisory opinion from Headquarters, United States Marine Corps. In an Advisory Opinion issued on March 18, 2010,
(AR 1088-1090 (emphasis added).)
Plaintiff filed a "Response to the Advisory Opinion" with the BCNR on April 1, 2010. Therein, he argued that the Advisory Opinion "does not justify the denial of [his] request that his record be corrected to show that he was promoted by the 1999 regular selection board" (AR 1100) because (1) his 8.95 Performance Index necessarily puts him above other Marines who were selected; (2) the Remedial Selection Board erred by considering plaintiff's OMPF but not any other Marine's OMPF; and (3) the cherry-picked OMPF entries cited in the advisory opinion were stale by 1999 and did not preclude [plaintiff's] selection. (4th Compl. ¶¶ 38-39) Plaintiff also submitted to the BCNR a number of statements from Marine Corps supervisors recommending his promotion, copies of which had been submitted when the case was before the Remedial Selection Board. (4th Compl. ¶ 39.)
On May 18, 2010, relying entirely on the Advisory Opinion and without expressly addressing any of plaintiff's arguments, the BCNR denied plaintiff's petition for relief. Following the BCNR's decision, plaintiff filed his Fourth Amended Complaint. Plaintiff asks the Court to: (1) set aside the May 2008 decision of the Remedial Selection Board and the May 2010 decision of the BCNR; (2) direct the Secretary to correct plaintiff's record to show that he was promoted to pay grade E-8 by the calendar year 1999 regular Selection Board or, in the alternative (and without prejudice to that relief), remand the case for further proceedings before the Remedial Selection Board and, if need be, the BCNR on plaintiff's request that his record be so corrected; and (3) grant such other and further relief as may in the circumstances be just and proper. Defendant has moved to dismiss or, in the alternative, for summary judgment. Plaintiff has moved for summary judgment.
Plaintiff's Fourth Amended Complaint claims that the BCNR's May 18, 2010 decision is arbitrary and capricious and contrary to law because it addressed neither the nonfrivolous arguments advanced in plaintiff's response to the advisory opinion nor the supporting statements he submitted (4th Compl. ¶ 46) and that the Remedial Selection Board's May 8, 2008 decision along with the BCNR's decision are arbitrary and capricious "for the reasons set forth in [plaintiff's] response to the advisory opinion." (4th Compl. ¶ 47). Defendant has moved to dismiss or, in the alternative, for summary judgment on the ground that plaintiff's claim for retroactive promotion is not justiciable and the BCNR's decision is not arbitrary and capricious.
A final decision of the BCNR is subject to judicial review under § 706 of the Administrative Procedure Act, 5 U.S.C. § 706. See Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997). Under the APA, a reviewing court must "defer" to an agency's decision unless it "is arbitrary and capricious, contrary to law, or unsupported by substantial evidence." Id.; see Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989). Generally, "[t]he scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Thus, a court "will not disturb the decision of an agency that has `examined the relevant data and articulated a satisfactory explanation for its action including
Reviewing the decision of a military correction board requires an "unusually deferential application of the arbitrary or capricious standard" given the language of 10 U.S.C. § 1552(a). Kreis, 866 F.2d at 1514; see Musengo v. White, 286 F.3d 535, 538 (D.C.Cir.2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C.Cir.2000). As the Court of Appeals explained in Kreis:
Kreis, 866 F.2d at 1514. Thus, a court's role in reviewing the decision of a military corrections board is to determine whether "the decision making process was deficient, not whether [the] decision was correct." Dickson, 68 F.3d at 1405-06 (quoting Kreis, 866 F.2d at 1511). To enable a court to perform that review and ensure that the decision is not "utterly unreviewable," a military corrections board "must give a reason that a court can measure, albeit with all due deference, against the `arbitrary or capricious' standard of the APA." Kreis, 866 F.2d at 1514-15. Thus, if a military board of corrections "fail[s] to address . . . . arguments that are not facially frivolous," its decision must be reversed and the matter remanded. Frizelle, 111 F.3d at 175, 177; Dickson, 68 F.3d at 1404 ("fail[ure] to provide anything approaching a reasoned explanation" rendered military correction board's decision "arbitrary and capricious"); see also Calloway v. Brownlee, 366 F.Supp.2d 43, 53 (D.D.C.2005) ("[A]n agency action is arbitrary and capricious if the agency . . . has entirely failed to consider an important aspect of the case presented.").
Defendant has moved to dismiss plaintiff's complaint as nonjusticiable on the ground that "the determination as to whether [plaintiff] should be promoted to the rank of Master Sergeant is decidedly a military personnel decision." (Def.'s Mem. in Support of Supp. Mot. to Dismiss or Summ. J. at 10, July 2, 2010 ["Def.'s Mem."]
However, plaintiff's complaint also challenges the BCNR's decision making process. As the Court of Appeals held in Kreis, a claim for the correction of military records, even where plaintiff's "efforts are aimed ultimately at securing his promotion," is justiciable because such a claim "required the district court merely to evaluate, in light of familiar principles of administrative law, the reasonableness of the Secretary's decision not to take certain corrective action with respect to [plaintiff's] record," and that "adjudication of [plaintiff's] claims would require[d] the district court to determine only whether the Secretary's decision making process was deficient, not whether his decision was correct." 866 F.2d at 1511. Indeed, defendant acknowledges that "[t]his Court would have authority to set aside the Corrections Board and Remedial Selection Board decisions as procedurally improper." (Def.'s Mem. at 13.)
Accordingly, defendant's motion to dismiss will be granted in part and the Court will dismiss plaintiff's claim to the extent he asks this Court to order the Secretary of the Navy to retroactively promote him.
Plaintiff contends first that the May 8, 2008 Remedial Selection Board decision and the May 18, 2010 BCNR decision are arbitrary and capricious for the reasons set forth in plaintiff's response to the Advisory Opinion or, in the alternative, that the BCNR decision is arbitrary and capricious because it failed to address those arguments or the supporting statements plaintiff submitted along with his response to the Advisory Opinion. The Court will consider the latter contention first because only if the BCNR addressed plaintiff's arguments, either expressly or because the Court is able to "discern" its analysis from the record before it, can the Court evaluate whether its decision-making process was otherwise deficient. If the BCNR failed to address plaintiff's nonfrivolous arguments, the appropriate remedy would be a remand to the BCNR for it to do so in the first instance.
As described above, in considering plaintiff for remedial promotion, the Remedial Selection Board had before it plaintiff's Performance Index rating (8.95), the range of PI ratings for the Marines considered for promotion to either Master Sergeant or First Sergeant by the 1999 regular Selection Board (all but two of the Marines recommended for promotion had ratings between 8.80-9.00, as did many Marines not recommended for promotion), plaintiff's Official Military Personnel File, and data from the Marine Corps Total Force System. Plaintiff argues that because MCO 5420.16C requires that the "primary consideration of the ERSB will be a comparison of the record of the Marine granted remedial consideration to the records of the Marines selected by the regularly scheduled board before which the Marine has been granted remedial consideration" (AR 346), the process employed by the May 8, 2008 Remedial Selection Board was flawed. Specifically, plaintiff criticizes the Board's process on the grounds that (1)
Defendant suggests that plaintiff's argument is meritless because it is "obvious that the [2008 Remedial] precept required the Remedial Selection Board for 1999 to compare Plaintiff's Official File to the Performance Index of other Marines selected for promotion." (Def.'s Mem. at 21.)
Plaintiff made its argument to the BCNR (see Pl.'s Response to Advisory Opinion), but the BCNR never addressed it. See, e.g., Dickson, 68 F.3d at 1404 ("agency's explanation must minimally contain `a rational connection between the facts found and the choice made'" (internal quotations omitted)); Kreis, 866 F.2d at 1514 (Secretary "must give a reason that a court can measure, albeit with all due deference, against the `arbitrary or capricious' standard of the APA.") And although "[a] reviewing court will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned," Dickson, 68 F.3d at 1404, the Court is unable to "discern" the BCNR's rationale from the record before it. The
In any event, because the Court is reviewing the "decision making process" of the BCNR, not whether its decision was "correct," see Dickson, 68 F.3d at 1405 (quoting Kreis, 866 F.2d at 1511), it cannot "substitute its judgment for that of the agency" or "`supply a reasoned basis for the agency's decisions that the agency itself has not offered.'" Calloway, 366 F.Supp.2d at 53-54 (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856). Rather, the BCNR's failure to address a non-frivolous argument raised by plaintiff that could affect the BCNR's ultimate disposition renders the BCNR's decision arbitrary and requires a remand so that the BCNR can consider and respond to the argument. See Frizelle, 111 F.3d at 177 (remanding to Coast Guard Board for Correction of Military Records because "Board did not respond to two of [plaintiff's] arguments, which do not appear frivolous on their face and could affect the Board's ultimate disposition"); Dickson, 68 F.3d at 1406 (remanding to Army Board for Correction of Military Records because "boilerplate language used by the Board ma[de] it impossible to discern the Board's path"); Poole v. Harvey, 571 F.Supp.2d 120, 126 (D.D.C.2008) (remanding to Army Board for Correction of Military Records because plaintiff's argument was "non-frivolous and potentially meritorious and the [Board] failed to address it"); Roberts v. Harvey, 441 F.Supp.2d 111, 121 (D.D.C. 2006) (remanding to Army Board for Correction of Military Records for failure to address argument); Calloway, 366 F.Supp.2d at 55 (remanding to Army Board for Correction of Military Records for failure to address nonfrivolous arguments). As the Court in Dickson noted: a court "cannot determine whether the decision making process was deficient until [it is] allowed to understand what that process was." 68 F.3d at 1406.
The BCNR's failure to address plaintiff's argument renders its decision arbitrary. Accordingly, the Court will remand this matter to the BCNR for further consideration. On remand, the BCNR is free to reject plaintiff's argument, but "it must expressly indicate that it has done so" and "explain its rationale." Calloway, 366 F.Supp.2d at 55 (internal quotations omitted); see also Calloway v. Harvey, 590 F.Supp.2d 29, 40 (D.D.C.2008) (military board did not act arbitrarily in denying
For the reasons stated above, plaintiff's claim for remedial promotion will be dismissed; the May 18, 2010 decision of the BCNR will be set aside, and the case will be remanded to the BCNR for further proceedings in accordance with this opinion. A separate Order accompanies this Memorandum Opinion.
