BERYL A. HOWELL, District Judge.
The plaintiff, Robert McDonough, an active duty Naval Service Lieutenant, brings this action against defendant Ray Mabus, Jr., in his official capacity as Secretary of the Navy, under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2000), alleging that the Board for Correction of Naval Records ("BCNR") abused its discretion in refusing to grant the plaintiff full credit for the commissioned service he performed in the Navy prior to entering the Navy Judge Advocate General's Corps ("Navy JAGC") in 2006. The plaintiff alleges specifically that, in being limited to 48 months of prior commissioned service credit when his rank was calculated as he entered the Navy JAGC, he was denied 41 months of active duty service for the period he served as a Lieutenant from May 1, 2003 through September 29, 2006, see Complaint ("Compl."), ECF No. 1, ¶ 19, and that the BCNR's interpretation of the statutory provisions, 10 U.S.C. §§ 533 and 12207, governing the calculation of his prior commissioned service credit was arbitrary and capricious. See Mem. in Supp. of Pl.'s Cross Mot. for Summ. J. and Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Mem."), ECF No. 21-2, at 1; Compl. ¶ 19. The plaintiff requests that the Court remand the agency decision so that the BCNR may "grant Plaintiff prior commissioned service credit ..., restore Plaintiff's lineal number, date of rank, and direct Plaintiff's record be placed before a special selection board for promotion consideration consistent with Plaintiff's year group of 1999." ECF No. 21-3 ("Pl's. Proposed Order").
Pending before the Court are cross-motions for summary judgment. See ECF Nos. 18, 21. For the reasons explained below, the plaintiff's motion for summary judgment is DENIED and the defendant's motion for summary judgment is GRANTED.
On January 22, 1999, the plaintiff entered the United States Naval Service Officer Candidates School ("OCS") for training to become a commissioned officer of the United States Navy.
The plaintiff completed OCS, and, on April 23, 1999, he was commissioned as an Ensign (O-1) in the United States Navy Reserve-active ("USNR-active"). Compl. ¶ 6; Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") at 2. Two years later, on April 23, 2001, the plaintiff was
In August 2003, the plaintiff, while still on active duty in the Navy, began a night school program at Roger Williams Law School in Rhode Island while continuing his naval service during the day. Compl. ¶ 9; Pl.'s Facts ¶¶ 6-7; Def.'s Facts ¶¶ 6-7.
On December 31, 2005, before he graduated from law school, the plaintiff was released from active duty "while retaining an obligation in the Individual Ready Reserve ("IRR") until January 22, 2007." Def.'s Facts ¶ 8; Pl.'s Facts ¶ 8; Compl. ¶ 10. The IRR is a component of reserve forces where reservists do not participate in the daily drills and activities of their service branch but are eligible for mobilization on command of the Secretary of the Navy. See 10 U.S.C. § 10144. The plaintiff was approved to become an active reservist on January 30, 2006, see Pl.'s Facts ¶ 9; Def.'s Facts ¶ 9.
In May 2006, while still retaining a reserve obligation in the IRR, the plaintiff graduated from law school. Compl. ¶ 12; Def.'s Facts ¶¶ 6-7. On August 25, 2006, the plaintiff was recommissioned as a reserve Ensign in the Navy JAGC student program pursuant to 10 U.S.C. § 12203.
Concurrently with his new appointment, the plaintiff's lineal number was modified from 09531800 to 13538600, and his date of rank as Lieutenant was modified from May 1, 2003 to September 29, 2006. Compl. ¶ 18, Pl.'s Facts ¶ 13; Def.'s Facts ¶ 13.
At issue in this lawsuit is the calculation of the plaintiff's rank when he entered the Navy JAGC in 2006. See Compl. ¶¶ 18, 19. The defendant contends in its Motion for Summary Judgment that the plaintiff's date of rank was calculated correctly pursuant to 10 U.S.C. § 533, Department of Defense Directive 1312.3 ("DoD Directive 1312.3" or "DODDIR 1312.3"), and Chief of Naval Operations Instruction 1120.11 ("Naval Operations Instruction 1120.11" or "OPNAVINST 1120.11"). See Def.'s Facts ¶ 14; AR Appx. at 3 (BCNR decision explaining how the plaintiff's entry grade credit was calculated). The plaintiff argues, to the contrary, that the "[d]efendant miscalculated Plaintiff's date of rank based on a 48 month limit on prior commissioned service credit contained in Naval Operations Instruction 1120.11, without regard
At the outset, the Court must address a point of confusion in the challenged BCNR decision of April 1, 2011 and the parties' briefing, namely whether 10 U.S.C. § 533 or 10 U.S.C. § 12207 is the statute under which the plaintiff's prior commissioned service credit was calculated upon his appointment in 2006 as a Lieutenant in the Navy JAGC.
The BCNR, in its final decision of April 1, 2011 stated that the plaintiff's "Regular appointment in the [JAGC] was computed in accordance with [10 U.S.C. § 533]." AR Appx. at 3. Before making that decision, the BCNR had requested a legal opinion from the Department of Navy's Navy Personnel Command ("NPC") regarding the plaintiff's request for a correction of his naval record to provide him the 41 months of prior service credit he believed he was owed. AR Appx. at 2. The NPC stated in its advisory opinion for the BCNR that "Applicant's grade and rank within grade at the time of his appointment into the JAGC Student Program was done pursuant to 10 U.S.C. § 12207 (Service Credit Upon Original Appointment [As a Reserve Commissioned Officer]) and not 10 U.S.C. § 533, which applies to Regular appointments." AR Appx. at 6. The BCNR "substantially concurred with the comments contained in the advisory opinion, except to note that entry grade credit (EGC) for [the plaintiff's] Regular appointment in the [JAGC] was computed in accordance with title 10 of the United States Code, section 533, not section 12207." AR Appx. at 3. The BCNR decision offers no further clarification or reason for its exception to the NPC legal opinion.
Consistent with the BCNR decision, the defendant's Motion for Summary Judgment and Statement of Facts refer to 10 U.S.C. § 533. See Def.'s Mem. at 1
The plaintiff's filings do not clarify this matter. The plaintiff's Complaint, filed before the final BCNR decision at issue (the final BCNR decision was made on remand from this Court), states that 10 U.S.C. § 533 applies to the calculation of the plaintiff's date of rank, and does not even mention 10 U.S.C. § 12207. See Compl. ¶¶ 24, 34-35. The Plaintiff's Cross-Motion for Summary Judgment, however, states that "the calculation of Plaintiff's date of rank is governed unambiguously by 10 U.S.C. § 533 and 10 U.S.C. § 12207." Pl.'s Mem. at 1; see also id. at 3, 5, 8, 15; see also Pl.'s Facts ¶ 30 ("Plaintiff now asks that this Court declare that BCNR's failure to grant relief in Plaintiff's case was arbitrary, capricious, an abuse of discretion and not in accordance with law by failing to apply 10 U.S.C. [§ ]533 and 10 U.S.C. [§ ]12207."); see id. ("Plaintiff seeks an order remanding his case to BCNR with instructions consistent with the provisions contained in 10 U.S.C. [§ ]533 and 10 U.S.C. [§ ]12207...."). Since this Court's reasoning applies regardless of whether the plaintiff's commissioned service credit was computed under 10 U.S.C. § 533 or 10 U.S.C. § 12207, the Court need not decide which of these two statutes applied. Since the Complaint, the final BCNR decision, and the Defendant's Motion for Summary Judgment all refer to "10 U.S.C. § 533," the Court will primarily refer to the statute at issue in this case as 10 U.S.C. § 533, with points of clarification as needed with respect to 10 U.S.C. § 12207.
Section 533 of Title 10 of the United States Code governs the calculation of service credit for a "person receiving an original appointment in a commissioned grade" in the United States Navy. According to 10 U.S.C. § 533(a)(2), "[t]he Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited under paragraph (1), or to deny any such credit, in the case of a person who at the time of such appointment is credited with constructive service under subsection (b)." Id. § 533(a)(2).
Department of Defense Directive 1312.3, see AR 108, implements 10 U.S.C. § 533 as well as 10 U.S.C. § 12207. According to DoD Directive 1312.3, "[i]t is the policy of the Department of Defense that the award of service credit to any person being appointed, assigned, or designated as a commissioned officer in an officer category shall be equitably determined to establish an appropriate appointment grade and date of rank relative to other officers in the same competitive category." DoD Directive 1312.3 ¶ 4.1. It further notes that "[t]he entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of constructive service credit allowed." Id. ¶ 4.2.
Naval Operations Instruction 1120.11 establishes Navy-specific regulations governing the awarding of entry grade credit under 10 U.S.C. § 533 and 10 U.S.C. § 12207, providing guidance for the "appointment of regular and reserve officers in the Navy Judge Advocate General's Corps." AR 116. Naval Operations Instruction 1120.11 provides that individuals entering JAGC may receive three years of entry grade credit for law school. Id. at 123. It also provides that the total entry grade credit ("EGC") "shall be limited to 48 months." Id. at 124 ("To obtain experienced former active-duty commissioned officers who can compete for career status while maintaining uniform and stable management of the JAG Corps community, total EGC granted, other than for officers accessed through the [Law Education Program, or LEP], shall be limited to 48 months").
The plaintiff alleges that, since "[a] service member's date of rank directly affects the date on which that service member may be eligible for promotion," Def.'s Facts ¶ 15, following the calculation of his rank after entering the JAGC in 2006, he immediately entered into "negotiations with Navy Personnel Command" in order to correct what he alleges was the erroneous deprivation of 41 months of prior service time. Compl. ¶ 20. On November 14, 2007, Navy Personnel Command ("NPC") denied relief, finding that the plaintiff's rank had been properly calculated. Id. ¶ 21; Pl.'s Facts ¶ 19; Def.'s Facts ¶ 19.
The plaintiff then attempted to seek relief by appealing to the BCNR. Compl. ¶ 22. The plaintiff sought from the BCNR, inter alia, restoration of his original date of rank and lineal number, and consideration for promotion along with his year group. Id. ¶ 23; Pl.'s Facts ¶ 20; Def.'s Facts ¶ 20. The BCNR denied the plaintiff's appeal on August 8, 2008, ruling that the plaintiff's date of rank and lineal number had been properly calculated. Pl.'s Facts ¶ 21; Def.'s Facts ¶ 21; AR 29-31.
The plaintiff requested that the BCNR reconsider its decision, clarifying that he was not seeking constructive credit for time spent in law school. Compl ¶ 32; Pl.'s Facts ¶ 22; Def.'s Facts ¶ 22. On June 17, 2009, the BCNR again denied the plaintiff relief on the grounds that "[the p]laintiff failed to provide any `new or material information' for the BCNR to consider." Def.'s Facts ¶ 23; see also Compl. ¶ 33; Pl.'s Facts ¶ 23.
The plaintiff then filed this lawsuit, on August 23, 2010, in the District Court for the District of Columbia. See ECF No. 1. In November 2010, upon a joint request from the parties, the Court remanded the case back to the BCNR for further review. See Minute Order (Nov. 5, 2010); Pl.'s Mem. at 5; Def.'s Facts ¶ 25; AR Appx. 77-79.
The BCNR then sought an advisory opinion from the NPC, see AR Appx. at 5, which the NPC provided to the BCNR on January 26, 2011. Pl.'s Facts ¶ 28; Def.'s Facts ¶ 28; AR Appx. 5-20. The NPC concluded that the plaintiff's entry grade credit and date of rank were computed
The NPC advisory opinion stated that the Secretary of Defense implements section 12207 through Department of Defense Directive 1312.3, pursuant to which "entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of constructive service credit allowed." Id. According to the NPC advisory opinion, the plaintiff was not entitled to any constructive service credit because he was in active status while in law school, but the Secretary of the Navy was "authorized to award" the plaintiff EGC for his previous commissioned service. Id. at 7.
The NPC advisory opinion further explained that "[c]onsistent with DODDIR 1312.3, Chief of Naval Operations Instruction (OPNAVINST) 1120.11 regulates the standards for Appointment of Regular and Reserve officers in the Navy JAGC." Id. Pursuant to paragraph 12 of that regulation, EGC for JAGC officers, barring exceptions not applicable here, is capped at 48 months. See id. It was based on this regulation, consistent with the statutory authority under title 10, and consistent with DODDIR 1312.3, that the plaintiff's entry grade credit was capped at 48 months.
On April 11, 2011, a three-member panel of the BCNR, relying in large part on the reasoning in the NPC advisory opinion, declined to grant the plaintiff relief. AR Appx. at 2-4. The BCNR first clarified in its decision that, contrary to what the NPC advisory opinion stated, the plaintiff's entry grade credit when he entered the JAGC was "computed in accordance with [10 U.S.C. § ]533, not section 12207." AR Appx. at 3. Beyond that exception, the BCNR "substantially relied upon the NPC advisory opinion[,] stating that [the p]laintiff's date of rank had been properly calculated in accordance with 10 U.S.C. § 533, DoD Directive 1312.3, and Naval Operations Instruction 1120.11." Pl.'s Facts ¶ 29; Def.'s Facts ¶ 29; see also Pl.'s Mem. at 5; AR Appx. 1-4.
Specifically, the BCNR found that 10 U.S.C. § 533(a)(2) authorizes the Secretary of Defense "to prescribe regulations limiting credit for prior active commissioned service, or to deny any such credit in the case of a person credited with constructive service." AR Appx. 3-4. The BCNR also found that "applicability of the authority to limit credit for prior active commissioned service is not restricted to persons credited with constructive service." Id. at 4. The BCNR further explained that DoD Directive 1312.3 and Naval Operations Instruction 1120.11 implement sections 533 and 12207. See id. at 3.
Following the BCNR's decision, the defendant filed a Motion for Summary Judgment in this Court. See ECF No. 18. The plaintiff filed a Cross-Motion for Summary Judgment. See ECF No. 21. The stay was then lifted, and these two motions are pending before this Court.
A court shall grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R.CIV.P. 56(a). In this case, the Court is presented with cross motions for summary judgment in the context of reviewing a decision of the BCNR, an agency action. "[W]hen an agency action is challenged[]... [t]he entire case on review is a question of law, and only a question of law." Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993). This Court need not and ought not engage in lengthy fact finding, since "[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006) (quotation marks and citation omitted); see also Wilson v. McHugh, 842 F.Supp.2d 310, 315 (D.D.C.2012); Caez v. United States, 815 F.Supp.2d 184, 188 (D.D.C.2011). Both parties agree that there is no dispute as to any material fact. Pl.'s Mem. at 6 ("Plaintiff agrees with Defendant that Summary Judgment upon the administrative record is the appropriate court sanctioned methodology for resolving this matter."); Def.'s Mem. at 6-7.
Pursuant to 10 U.S.C. § 1552(a), "[t]he Secretary of a military department [acting through a civilian board, such as, in this case, the BCNR] may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." A final decision from the BCNR "is subject to judicial review under § 706 of the Administrative Procedure Act, 5 U.S.C. § 706." Pettiford v. Sec'y of the Navy, 774 F.Supp.2d 173, 181 (D.D.C. 2011) (citing Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997)).
Under the APA, a court defers to the agency unless the agency's action is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Pettiford, 774 F.Supp.2d at 181. To evaluate whether an agency action is "arbitrary or capricious," the reviewing court "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of
Indeed, under the "arbitrary and capricious" standard of review, a court presumes that the agency's action is valid. Envtl. Def. Fund Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981); see also Grid Radio v. FCC, 278 F.3d 1314, 1322 (D.C.Cir. 2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C.Cir.2000); CS-360, LLC v. U.S. Dep't of Veteran Affairs, 846 F.Supp.2d 171, 185 (D.D.C.2012). Nevertheless, if the agency "failed to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action." Cnty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C.Cir.1999). At a minimum, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); Kight v. United States, 850 F.Supp.2d 165, 169 (D.D.C. 2012); Rudo v. Geren, 818 F.Supp.2d 17, 24 (D.D.C.2011) ("As long as an agency has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made, courts will not disturb the agency's action.") (internal quotation marks and citation omitted). "A reviewing court will `uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'" Frizelle, 111 F.3d at 176 (quoting Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 (D.C.Cir.1995)).
In the D.C. Circuit, review of the actions of military corrections boards is "unusually deferential." Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (citing Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989)); see also Appleby v. Geren, 330 Fed.Appx. 196, 198 (D.C.Cir.2009) (unpublished). "Even in the face of an `undisputed error' or `conceded injustice,' we must deny the petition for review if the Board offered an adequate explanation `that a court can measure.'" Id. (quoting Kreis, 866 F.2d at 1514).
Nevertheless, there is a limit to the deference that this Court owes to agency action, even with respect to military matters. "[T]he law in this Circuit... differentiates between `military judgment requiring military expertise,' which should be reviewed under the `unusually deferential' standard, and `review of the Board's application of a procedural regulation governing its case adjudication process,' which is reviewed under the traditional arbitrary and capricious APA standard." Wilhelmus v. Geren, 796 F.Supp.2d 157, 162 (D.D.C.2011) (citing Kreis v. Sec'y of Air Force, 406 F.3d 684, 686 (D.C.Cir.2005)). The plaintiff asserts that in this case no heightened deference is due because the BCNR's decision "required no specialized military judgment." Pl.'s Mem. at 8. This Circuit, however, has taken a broad view of military expertise to which deference is owed, extending it to the military records correction boards' personnel decisions. See Cone, 223 F.3d at 793 (applying heightened deference in a case involving
The plaintiff argues that the BCNR's decision to limit the plaintiff's prior service credit to 48 months was incorrect, and caused the plaintiff to "lose promotion opportunities." Pl.'s Mem. at 1. Specifically, the plaintiff alleges that the calculation of the plaintiff's date of rank "is governed unambiguously by 10 U.S.C. § 533 and 10 U.S.C. § 12207," and that the "interpretation of the statutes by BCNR denying [the p]laintiff relief was arbitrary and capricious, an abuse of discretion and contrary to law." Id. The defendant counters that the date of rank calculation "does not fall squarely within the confines of 10 U.S.C. § 533" and that it must be "calculated in accordance with section 533, DoD Directive 1312.3, and Naval Operations Instruction 1120.11." Def.'s Mem. at 1. The defendant notes that taken together, this statute and these regulations provide "more detailed instructions on how the Department should calculate prior military service, with respect to promotion and other opportunities, for a service member who is beginning a new professional career within the Navy JAGC program." Id. at 1-2. The Court concludes that the statutory provision at issue — 10 U.S.C. § 533 — plainly gives the Secretary of Defense the authority to issue regulations limiting the amount of prior service credit granted to new JAGC lawyers (as noted, supra, this same reasoning applies to 10 U.S.C. § 12207). Since DoD Directive 1312.3 and Naval Operations Instruction 1120.11, pursuant to which the plaintiff's entry grade credit was calculated, are consistent with that statutory authority, the plaintiff has not shown that the BCNR's final decision was "arbitrary and capricious."
The Court first examines 10 U.S.C. § 533, and then the regulations issued by the Department of Defense related to the plaintiff's date of rank calculation, before turning to the plaintiff's remaining arguments that the BCNR decision was arbitrary and capricious.
The plaintiff argues that the "calculation of Plaintiff's date of rank is governed unambiguously by 10 U.S.C. § 533." Pl.'s Mem. at 1. Specifically, the plaintiff argues that, pursuant to 10 U.S.C. § 533(a),
The very next prong of the statute, however, gives the Secretary of Defense authority to issue regulations related to the granting of prior commissioned service credit. Specifically, 10 U.S.C. § 533(a)(2) provides:
This statute is unambiguous and plainly states that the Secretary of Defense "shall prescribe regulations" concerning the amount of prior commissioned service credit a person receiving an original appointment may be credited. The plaintiff argues unavailingly that section 533(a)(2) "taken in conjunction with section 533(a)(1) means that a service member gets full credit for prior commissioned service unless that service member got constructive service credit in which case the Secretary can limit or deny prior commissioned service credit." Pl.'s Mem. at 11. In other words, the plaintiff reads the conditional clause, "in the case of a person who at the time of such appointment is credited with constructive service" as a restriction on the Secretary's authority both "to limit the amount of prior commissioned service [that] may be credited" and "to deny any such credit" altogether. The plaintiff explains that "[h]owever, if there is no constructive service credit section, 533(a)(1) applies and all prior service is credited." Pl.'s Mem. at 11. That is not a correct reading of the statute.
The plain language of the statutory provision authorizes the Secretary of Defense to promulgate regulations to "limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited." 10 U.S.C. § 533(a)(2). Thus, the Secretary of Defense may promulgate regulations that "limit the amount of prior active commissioned service" regardless of whether constructive service is credited. The clause "in the case of a person who at the time of such appointment is credited with constructive service under subsection (b)" modifies only the language "or to deny such credit."
The plaintiff further argues that there is "no rational basis" for concluding that the constructive credit clause only modifies the denial provision because that would mean the Secretary of Defense "could only deny credit to constructive service members, but could not limit credit to constructive credit service members." Pl.'s Mem. at 12. In other words, the plaintiff contends that the conditional clause relating to constructive service members either applies very broadly (restricting the Secretary's authority both to limit or to deny credit), or very narrowly (restricting the Secretary's authority to only grant or deny constructive credit, rather than also having the authority to limit it). The Court does not agree with this strained reading of the provision. The defendant has offered a rational basis for the statutory distinction
Accordingly, the Court agrees with the defendant — and with the BCNR final decision — that "title 10 of the United States Code, section 533(a)(2) authorizes [the Secretary of Defense] to prescribe regulations limiting credit for prior active commissioned service, or to deny any such credit in the case of a person credited with constructive service." AR Appx. at 3-4. Given the plain language of the statute, the Court further agrees with BCNR that the "applicability of the authority to limit credit for prior active commissioned service is not restricted to persons credited with constructive service[.]" Id. at 4.
Pursuant to the directive in 10 U.S.C. § 533(a)(2) and 10 U.S.C. § 12207(a)(2) that the Secretary of Defense "shall prescribe regulations," the Department of Defense promulgated DoD Directive 1312.3 and the Secretary of the Navy developed Naval Operations Instructions 1120.11 to limit the amount of prior service credit due a service member entering a new professional field. The plaintiff does not dispute that, if these regulations were to apply to his situation, his date-of-rank was calculated correctly in this case. Instead, the plaintiff argues that these regulations are "facially defective" and that they simply do not apply because the plaintiff did not have any constructive service credit, and thus the defendant had no statutory authority to promulgate these regulations to limit his service credit. Pls.'s Mem. at 12. The Court disagrees. These regulations are consistent with the unambiguous statutory authority under title 10, and the Court finds nothing arbitrary and capricious about the BCNR's explanation of how the plaintiff's date of rank was calculated pursuant to these regulations.
Pursuant to its authority under 10 U.S.C. § 533 and 10 U.S.C. § 12207, the Department of Defense promulgated DoD Directive 1312.3 regarding service credit for commissioned officers. Under DoD Directive 1312.3, the general policy of the Department of Defense is that service credit "to any person being appointed, assigned, or designated as a commissioned officer in an officer category shall be equitably determined to establish an appropriate appointment grade and date of rank relative to other officers in the same competitive category." AR 109 (emphasis added).
As the defendant explains, this means that a person joining the JAGC program who has prior experience practicing law, or working in the "same competitive category," may receive more service credit than a person, like the plaintiff, who had experience in the military performing work outside of the competitive category in which he is now working. Def.'s Mem. at 11.
Consistent both with 10 U.S.C. § 533 (and 10 U.S.C. § 12207) and with DoD Directive 1312.3, Naval Operations Instruction 1120.11 provides Navy-specific standards for the appointment of regular and reserve officers in the JAGC. Naval Operations Instruction 1120.11 states that it establishes regulations governing the "[a]ward of entry grade credit on appointment in the JAG Corps under sections 533 and 12207." AR 116. This Instruction further explains that in order to "obtain experienced former active-duty commissioned officers who can compete for career status while maintaining uniform and stable management of the JAG Corps community, total [Entry Grade Credit] granted, other than for officers accessed through the LEP, shall be limited to 48 months." AR 124. The plaintiff has not shown that there is anything arbitrary and capricious about the defendant capping the plaintiff's prior service credit at four years pursuant to this express regulation.
The Court now turns to the plaintiff's remaining arguments that the BCNR's decision was arbitrary and capricious. First, the Court addresses the plaintiff's argument that 10 U.S.C. § 533(f), in conjunction with 10 U.S.C. § 12207, "[y]ields [f]ull [p]rior [s]ervice credit for [p]laintiff." Pls.' Mem. at 13. Second, the Court turns to the plaintiff's argument that he is entitled to equitable relief because the "[r]esult [i]mposed [u]pon [p]laintiff by the Navy [w]ith [c]onfirmation by the BCNR has [w]orked an [i]nequity upon" him. Pls.' Mem. at 15.
Perhaps realizing the futility of his arguments regarding 10 U.S.C § 533(a), DoD Directive 1312.3 and Chief of Naval Operations Instruction 1120.11, the plaintiff asserts that he is entitled to relief because he was appointed as a Lieutenant in the JAGC under 10 U.S.C. § 533(f), which governs awards of prior service credit to officers transitioning from reserve to regular status. See Pl.'s Mem. at 13-14. According to the plaintiff, DoD Directive 1312.3 does not apply "to the appointment of Reserve commissioned officers as Regular commissioned officers under Section 533(f)," id. (quoting AR 109), and, consequently, this means "simply that full credit for prior active duty service is required if the appointment falls under [10 U.S.C. section] 533(f)." Pl.'s Mem. at 13.
The plaintiff provides no legal support for the argument that he was appointed under 10 U.S.C. § 533(f), however. Furthermore, he has not shown that it was arbitrary and capricious for the BCNR to conclude expressly that the plaintiff's appointment was not under 10 U.S.C. § 533(f). As the BCNR explained, "section 533(f) applies to officers who are merely transitioning from Reserve to Regular status, but the EGC [entry grade credit] provisions of section 533 apply to officers, like yourself, who are entering a
Moreover, even if section 533(f) did apply to the plaintiff's appointment as a Lieutenant, it is far from clear that the plaintiff would be entitled to a promotion in rank under that provision. Def.'s Mem. at 16. Under 10 U.S.C. § 533(f):
Immediately before his regular appointment to the JAGC as a Lieutenant, the plaintiff was not on the active duty list, but was a reservist at the rank of Ensign in the JAGC. See Compl. ¶¶ 13-15 (noting that, on August 21, 2006, "Plaintiff was recommissioned as an Ensign" after serving as a drilling reservist, and that it wasn't until Sept. 12, 2006 that he "received active duty orders"); AR Appx. 8 (NPC advisory opinion stating that, immediately before his appointment as a Lieutenant in the JAGC, the plaintiff was not on the "active duty list" but was on the "reserve active status list"); see also Pl.'s Mem. at 14 (admitting that the plaintiff "went from Reservist to Regular status in the JAGC" when he was appointed as a Lieutenant in September 2006). Since the plaintiff was a reserve Ensign prior to his appointment as a regular Lieutenant in September 2006, which he claims "was done pursuant to section 533(f)," Pl.'s Mem. at 14, pursuant to the plain language of 10 U.S.C. § 533(f), the plaintiff should have received a regular appointment at the rank of Ensign, rather than Lieutenant, to the JAGC. See 10 U.S.C. § 533(f) (a reserve officer receiving a regular appointment "shall ... be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer ... immediately before the appointment"); see also NPC Advisory Opinion, AR Appx. at 8 (noting that "[u]nder 10 U.S.C. § 533(f), [the plaintiff] may have been appointed as a Regular officer in the grade of ensign; instead, the Navy appointed Applicant in the higher grade of lieutenant."). Thus, an appointment under 10 U.S.C. § 533(f) would not have helped the plaintiff to advance in the JAGC.
Furthermore, the Court sees no reason why the four year service credit cap from
Finally, the Court turns to the plaintiff's argument that the Court should set aside the BCNR's decision because it "has [w]orked an [i]nequity" upon him. Pl.'s Mem. at 15. The plaintiff argues that "Sections 533(a)(1) and 12207(a)(1) of Title 10 reflect the fundamental notion that men and women who serve in the Armed Forces of this country deserve what they have earned," and that it is "inconceivable" that Congress would have intended the "draconian consequence" of the plaintiff being "stripped" of 41 months of active duty service. Pl.'s Mem. at 15. The Court is not convinced that there is any such injustice here.
Congress gave the Secretary of Defense authority to issue regulations limiting the rank of new lawyers with prior service for the rational reason of ensuring that more experienced lawyers are not supervised by inexperienced ones who may have a higher rank due solely to their prior service outside the specialized service. Capping the credit for prior service for officers newly appointed in the JAGC thus helps maintain discipline, order, and respect within the ranks. As the defendant argues, "th[is] system ... prevents unfairness to Plaintiff by assuring that officers like himself, with little legal experience, are not forced to compete for promotions with JAGs of the same rank that have significantly more legal experience." Def.'s Reply at 5-6. Moreover, this limit on prior service credit helps to promote higher quality legal work on behalf of the JAGC by ensuring that the more experienced lawyers are also the ones with a higher rank, with the authority by virtue of their rank to issue orders to less experienced lawyers.
An example helps illustrate how the plaintiff's request for relief in this case may lead to untenable results: under the plaintiff's reasoning, a person who decided to go to law school later in life, and entered the JAGC after ten years of prior commissioned service would be entitled to the full ten years of prior commissioned service, and would be competing for promotion with lawyers who have ten years of lawyering experience. That is like a newly-minted lawyer entering a law firm and, instead of taking up his or her place as a first-year associate being forced immediately to compete with lawyers eligible to make partner in the firm. The new lawyer would not be taken seriously in this competition; furthermore, the lawyer would almost certainly not have the lawyering experience to do what is required of a partner. This same reasoning must apply in the JAGC. Congress could not possibly have intended for a new lawyer to enter the JAGC and immediately be competing with colleagues with many more years of legal experience. That would not only provide a disservice to the new lawyer, but also endanger the respect for rank and discipline that is fundamental to military service. The Navy reasonably capped the plaintiff at four years of prior commissioned service, consistent with its regulations and statutory authority. There was nothing arbitrary and capricious about the BCNR's denial of the plaintiff's request for relief.
For the reasons explained above, the defendant's motion for summary judgment is GRANTED, and the plaintiff's cross-motion for summary judgment is DENIED.
