RUDOLPH CONTRERAS, United States District Judge.
While deployed in Iraq in 2004, pro se Plaintiff David Albino received a negative Officer Evaluation Report. Plaintiff believes that the evaluation is unjust, inaccurate, and the product of numerous administrative and procedural errors, and he has spent more than a decade attempting to have the evaluation removed from his military records. An Army inquiry into the contested evaluation found that it contained numerous errors and recommended that it be removed. Additionally, two Army administrative boards have collectively ordered six corrections to the evaluation. Nevertheless, the Army Board for Correction of Military Records ("ABCMR") has repeatedly denied Plaintiff's request to remove the evaluation. Plaintiff now brings suit against the United States under the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. ("APA"), arguing that the ABCMR's June 20, 2009, decision denying his application to remove the contested evaluation was arbitrary, capricious, and unlawful. The parties have filed cross-motions for summary judgment. After a searching review of the administrative record and careful consideration of the parties' briefs, the Court grants Plaintiff's motion for summary judgment and denies Defendant's
After serving as an enlisted sailor in the Navy and Navy Reserves, AR 403-07, 412, and graduating from law school at the University of Wisconsin-Madison, AR 445, 447, Plaintiff David Albino, on May 29, 1997, was appointed as a Reserve Commissioned Officer of the Army and assigned to the Judge Advocate General branch, effective June 3, 1997, AR 417.
For the evaluation period of June 3, 1998, to June 2, 1999, Plaintiff's Officer Evaluation Report ("OER") reflected a rating of "Outstanding Performance, Must Promote," and the Senior Rater rated him as "Best Qualified," concluding that Plaintiff's potential, compared to other officers rated in the same grade, was "Center of Mass." AR 322-23. For the period June 3, 1999, to June 2, 2000, Plaintiff's OER reflected a rating of "Satisfactory Performance, Promote," and the Senior Rater rated him as "Fully Qualified," concluding that Plaintiff's potential, compared to other officers rated in the same grade, was "Center of Mass." AR 320-21. This reflected a lower rating than the previous year.
For the period June 3, 2000, to June 2, 2001, Plaintiff's OER again reflected a rating of "Satisfactory Performance, Promote." AR 318-19. Plaintiff's Rater provided mixed comments that, although generally positive, were critical of Plaintiff's failure to meet physical fitness standards. AR 319. The OER did not contain comments from a senior rater because Plaintiff's Senior Rater had not served in that position for the requisite number of days. AR 319. For the evaluation period of June 3, 2001, to June 2, 2002, Plaintiff's OER reflected a rating of "Outstanding Performance, Must Promote," and the Senior Rater rated him as "Best Qualified" concluding that Plaintiff's potential, compared to other officers rated in the same grade, was "Center of Mass." AR 314-15. This rating reflected a return to higher ratings after a two-year decline, and was followed by another very positive review for the evaluation period from June 3, 2002, to April 16, 2003. AR 312-13 (reflecting ratings of "Outstanding Performance, Must Promote," "Best Qualified," and "Center of Mass"). But Plaintiff's rating for the period of May 3, 2003, to October 31, 2003, reverted to "Satisfactory Performance, Promote," although the senior rater continued to rate him as "Best Qualified" and "Center of Mass." AR 310-11. What happened to Plaintiff's military career subsequently is what is at the center of this litigation.
Between December 2003 and November 2004, Plaintiff was mobilized and deployed to Iraq. AR 92, 114. His OER for this time period lists him as an International Law Officer in a civil affairs battalion assigned to the 1st Infantry Division in Iraq. AR 136. Plaintiff, however, viewed himself as serving in a dual role, as Command Judge Advocate and as an International Law Officer. See AR 123. Regardless, while in Iraq, Plaintiff found himself under the command of Lieutenant Colonel Gregory P. Fischer ("LTC Fischer"), the Battalion Commander. The record clearly reflects that this was not a positive relationship.
Two projects that Plaintiff was tasked with while under LTC Fischer's command are central to the events at issue in this case. First, in the spring of 2004, Plaintiff was tasked with putting together a non-governmental organization ("NGO") conference to persuade NGOs to work in certain areas under the purview of the 1st Infantry Division. AR 158, 229, 269. The record reflects that Plaintiff participated in planning meetings, AR 269, and that when LTC Fischer sent out invitations to the NGO conference, Plaintiff was listed as the contact person, AR 229. The conference took place on June 1, 2004, at the Ashur Hotel at Dokan Lake in Sulaymaniyah, Iraq. AR 230-31. The event was portrayed as a success in the 1st Infantry Division's newsletter. AR 232-33. However, the record does not clearly reflect to what extent the success of the Sulaymaniyah conference was a consequence of Plaintiff's specific contributions as opposed to the work of others.
Second, in June 2008, Plaintiff was involved in the 1st Infantry Division's efforts to partner with the Coalition Provisional Authority—North ("CPA-North") in Ibril, Iraq in order to collect intelligence regarding the movements of internally displaced Iraqis. AR 127-28, 132, 137. The record appears to indicate, however, that the 1st Infantry Division and CPA-North were not on the same page regarding Plaintiff's mission. AR 125-29, 275-76. While the 1st Infantry Division wanted to survey internally displaced persons, AR 127-29, and LTC Fischer states that Plaintiff was so tasked, AR 137, the Regional Coordinator of CPA-North, Dr. Liane Saunders, wanted Plaintiff to act instead as a liaison, allowing the 1st Infantry Division to receive information from the CPA-North staff on displaced persons, AR 125-26, 159. CPA-North expressed concern that the 1st Infantry Division's interview efforts would duplicate work already being done by NGOs, and that it would inappropriately raise either expectations in the displaced populations that they would receive benefits or fears that they would be evicted. AR 129, 159. Perhaps tellingly, Plaintiff has indicated that he believed the 1st Infantry Division's resources could have been better used elsewhere. AR 159.
Plaintiff further claims that LTC Fischer's indecisiveness regarding the CPA—North partnership and trip to Ibril resulted in repeated changes in the plans for the trip and contradictory orders regarding whom Plaintiff should brief and when. AR 92, 141, 159. Specifically, Plaintiff claims that prior to his departure to Ibril, he was told first to brief the G3 Chief of Plans, the Chief of Staff ("Cos"), or both, before departure. AR 92. Plaintiff concedes that he did not brief either individual prior to leaving for Ibril on June 11, 2004. AR 93, 142. He maintains that he did not ignore orders, however, because on June 9, 2004, Major Gajewski told him that he could coordinate with G3 after his arrival in Irbil. AR 92, 141. Given the changing plans, conflicting orders, and difference of opinion between the 1st Infantry Division and the CPA-North, Plaintiff asked to be taken off the mission, but that request was not granted. AR 92, 137, 159.
On June 11, Plaintiff flew to Irbil. AR 141, 160. Although Plaintiff was instructed
The Regional Coordinator of CPA—North was displeased with the 1st Infantry Division's intelligence-collecting agenda and the force protection profile required for the visit, which she felt increased the risk for her team. AR 125. She therefore suggested that the visit not take place until the differences could be worked out, but she suggested Plaintiff be left behind in Ibril to act as a liaison between the 1st Infantry Division and CPA-North. AR 126. Shortly thereafter, Plaintiff was told that he and his team should return. AR 126, 131, 260. On June 12, one day after his arrival, Plaintiff returned from Irbil to Tikrit. AR 260.
On June 14, 2004, LTC Fischer formally reprimanded Plaintiff in writing. AR 132. The reprimand chastised Plaintiff for: not providing weekly reports to G2 on refugees; departing to Irbil without first briefing either the Chief of Staff or Chief of Operations on the plan to survey Internally Displaced Civilians, despite Plaintiff's awareness of the potential negative consequences of failing to brief the Chief of Staff; and asking to be taken off the mission, a request viewed as counter to duty and the values expected of an officer. AR 132. As a result of these transgressions, Plaintiff was relieved of his ministerial duties and informed that his assignment would be changed. AR 132. On June 22, 2004, Plaintiff was ordered by LTC Fischer to report to a Civil Affairs unit in Kirkuk by June 23, 2004. AR 225.
In and around June 27, 2004, Plaintiff began helping a soldier with an issue concerning a marriage certificate from Texas to be used in support of a hardship request. AR 289-91. After Plaintiff's efforts in this respect were brought to the attention of LTC Fischer, on July 1, 2004, Fischer sternly ordered Plaintiff to cease his activities and to stop representing himself as the command judge advocate for the battalion. AR 288.
Pursuant to the above, for the ratings period of December 1, 2003, to June 22, 2004, Plaintiff's OER ("Iraq Deployment Evaluation" or "evaluation") reflected a rating of "Unsatisfactory Performance" from Major Wayne B. Doyle. AR 136-37. Plaintiff's senior rater, LTC Fischer, rated him as "Do Not Promote" and, in comparison to his peers, "Below Center of Mass Do Not Retain." AR 137. The narrative portions of Plaintiff's evaluation also included negative comments. Major Doyle indicated that, in the two major division efforts with which Plaintiff was entrusted, Plaintiff required assistance and, at times, repeated guidance, and that Plaintiff had to be removed completely from one of the tasks. AR 137. Major Doyle further commented that Plaintiff "possesses a disposition to act independently of the chain of command and should not be advanced." AR 137.
LTC Fischer, as senior rater, added that Plaintiff's performance was less than satisfactory and that he needed constant supervision on two high profile tasks. AR 137. With respect to the first effort, the planning and execution of a division NGO conference, LTC Fischer indicated that it would not have been done had it been left to Plaintiff. AR 137. With respect to the second effort, collecting information on
With respect to Plaintiff's physical fitness during the evaluation period, the Iraq Deployment Evaluation indicates that Plaintiff was not in compliance with the Army's height and weight standards. AR 136 at Box IV.c. Major Doyle's narrative similarly states that Plaintiff was "flagged for not being in compliance with the standards of [Army Regulation] 600-9,
The evaluation form indicates that it was not given to Plaintiff but was forwarded to him on July 1, 2004. AR 136 at Box I.m. In the spot where Plaintiff was to sign the evaluation form, there is an indication of "Refuses to Sign." AR 136 at Box. II.e.
Pursuant to Army Regulation, by letter dated August 22, 2004, Plaintiff was informed that he could respond to the above-referenced evaluation documenting unsatisfactory performance and recommending that he not be promoted. AR 307. The August 22 letter, which was e-mailed to Plaintiff, indicated that Plaintiff's suspense date—the date by which his response to the evaluation was due—was August 23, 2004 (i.e., the next day). AR 307. As documented in LTC Fischer's memorandum dated November 5, 2005, Plaintiff failed to respond to the deployment evaluation by the suspense date. AR 306. However, LTC Fischer's memorandum asserted that Plaintiff's suspense date was November 4, 2004, not August 23, 2004, as had been indicated in the August 22 letter to Plaintiff. See AR 306.
In subsequent evaluations, Plaintiff's raters characterized his performance as "Outstanding Performance, Must Promote," deemed him "Best Qualified," and recommended his immediate promotion, but Plaintiff's senior raters no longer rated his potential in comparison to his peers, instead leaving empty the designated box. AR 302-03 (June 22, 2005, to June 21, 2006: "Promote to Major immediately," "In the top 10% of the Captains I rate.... [S]hould be promoted immediately."); AR 300-01 (June 22, 2006, to June 21, 2007: "CPT Albino should be promoted to Major immediately." "He ranks near the top of the CPT's I senior rate." "Promote Immediately.");
Plaintiff viewed the Iraq Deployment Evaluation as a career-ending, unjust, and flawed assessment, and he has presented a number of challenges to its validity over the course of the past decade.
On August 28, 2004, six days after he received the referral letter, Plaintiff requested that a Commander's Inquiry be made concerning the Iraq Deployment Evaluation because, in his view, the process was riddled with procedural defects and the evaluation was substantively incorrect. AR 258-63. Plaintiff argued that the subjective performance assessment was biased against him because of LTC Fischer's personal vindictiveness and because Plaintiff is of Puerto Rican descent. AR 259-63. In the request, Plaintiff raised a number of arguments, including that:
AR 259-63.
After Plaintiff submitted his request for a Command Inquiry, over three months passed without any word from the Army.
Several months later, on April 8, 2005, LTC Michael Connell e-mailed Plaintiff stating that he had spent the last couple of days trying to launch the requested commander's inquiry, and that he would ensure that the OER was reviewed. AR 148. Plaintiff responded three days later with his thanks and his contact information, reiterating his belief that the results of the inquiry would be favorable, but expressing regret that his OER had been used as a "personal vendetta tool," and that the Army had ignored its own timeliness regulations for so long. AR 149. Despite LTC Connell's assurances that an investigation would begin, nothing happened for 20 more months.
Finally, on December 8, 2006, Colonel Mark Hendrix appointed Colonel Gary Bromske to conduct an informal 15-6 Investigation into Plaintiff's allegations. AR 172. Although styled as a 15-6 Investigation, it was considered an equivalent to a Commander's Inquiry for purposes of Plaintiff's appeal. AR 171. Colonel Bromske forwarded his findings and recommendations to Colonel Hendrix on January 5, 2007, and Hendrix, in turn, forwarded them to the Human Resources Commander on January 28, 2007 (nearly two and a half years after Plaintiff's original request). AR 169-71.
As part of the Commander's Inquiry, Plaintiff was interviewed twice, and LTC Fischer also provided input. AR 173. The Inquiry resulted in a number of findings, including:
The Commander's Inquiry also stated that although the Evaluation's contents were supported by the chain of command, the Evaluation itself "seems to have been influenced by intense pressure by COL Kamena" exerted on LTC Fischer and MAJ Doyle. AR 173-74. However, the Commander's Inquiry did not corroborate or sustain Plaintiff's claims of racial or ethnic discrimination, determining that there was no reasonable support for this allegation. AR 179.
Based on these findings, the Commander's Inquiry recommended that the disputed Iraq Deployment Evaluation be removed from Plaintiff's official military personnel file, and that the period covered by the removed report be designated as non-rated. AR 170, 182. Legal Review of the Commander's Inquiry concluded on April 5, 2008, and found that the Inquiry's findings were supported by sufficient evidence and that the recommendations were consistent with those findings. AR 183.
On or about June 17, 2005, when the requested Commander's Inquiry still had yet to begin, Plaintiff sought assistance concerning the Iraq Deployment Evaluation from the Department of the Army's Office of Inspector General. AR 151-52. That office, however, deemed it inappropriate for an inquiry because Plaintiff had other avenues of appeal that must be utilized —specifically, the officer evaluation report appeal. AR 153.
On October 13, 2006, nearly two years after Plaintiff first requested a Commander's Inquiry that still had yet to begin, Plaintiff formally appealed the Iraq Deployment Evaluation to the Officer Special Review Board ("OSRB" or "Review Board"). AR 239-52. On the basis of the delayed Inquiry alone, Plaintiff argued that the Iraq Deployment Evaluation should be deleted from his military record. AR 239. Additionally, Plaintiff again claimed that LTC Fischer's negative review was motivated by vindictiveness and racial bias. AR 240-51. Plaintiff also raised a number of additional arguments highlighting problems with the evaluation, including that:
Submission and acceptance of Plaintiff's appeal was delayed because the Iraq Deployment Evaluation was posted to the wrong soldier's file. AR 180. By the time the appeal was considered, the Review Board had received the completed report and recommendations from the Commander's Inquiry but, apparently, they chose not to consider the Inquiry because it had not yet been legally reviewed.
On February 5, 2008, the Review Board denied Plaintiff's appeal, but it nevertheless directed that the Iraq Deployment Evaluation be corrected in certain respects. AR 184-96. Amongst its findings, the Review Board found the following:
As a result of these findings, the Review Board determined that there were "several administrative errors which must be corrected," and it directed that a number of changes be made to Plaintiff's evaluation, including: (1) removing the reference in part II.d. that Plaintiff did not wish to comment on the referred evaluation; (2) removing the reference in part VII.a. that a support form had been used by the senior rater in preparation of the evaluation; and (3) replacing "none" with three suitable future assignments for Plaintiff in part VII.d. AR 195-96.
On October 5, 2008, Plaintiff applied to the Army Board for Correction of Military Records ("ABCMR") to have his records corrected. AR 90. In his application, Plaintiff claimed that the Iraq Deployment Evaluation was motivated by vindictiveness, prejudice, and—adding for the first time one of the findings of the Commander's Inquiry—unlawful command influence. AR 90. As relief, he requested inter alia that the Iraq Deployment Evaluation be removed from his military personnel file, along with documents showing non-referrals and non-selection to promotions that he suffered as a consequence of the evaluation. AR 90.
In his application to the ABCMR, other than the new claim that the individuals who prepared the Iraq Deployment Evaluation were subject to unlawful command influence, Plaintiff largely reiterated the claims that he had previously raised in his request for a Commander's Inquiry and his appeal of the evaluation. AR 90-111. Those arguments are set forth above and will not be repeated here. But Plaintiff did update and add additional detail to many of his arguments. For example, to refute the Review Board's suggestion that the delay in the Commander's Inquiry was due to Plaintiff having sent the request to the wrong command, Plaintiff points out that a Commander's Inquiry is administrative under Army Regulation 523-105, and that he sent his request for an inquiry to the 350th CACOM, which had administrative control over the 415th Civil Affairs Battalion at the time. AR 97-98.
Additionally, further supporting his argument that he was rated by the wrong officers, Plaintiff provided information indicating that Major Bradley regularly reviewed Plaintiff's work and that he thought he was Plaintiff's rater for the period in question, finding out that the rating scheme had changed only late in their deployment.
Also, Plaintiff brought further focus to his claims about the evaluation's references to non-compliance with height and weight requirements. AR 101. The Plaintiff reiterated that, even if he was above the required weight for his height, the applicable regulations require a calculation of a soldier's percent body fat before finding him non-compliant, and this measurement was never done. AR 101. Furthermore, Plaintiff took issue with the Review Board's conclusion that, because he had allegedly seen the Iraq Deployment Evaluation on July 1, 2004, a one-day response date in August was a reasonable amount of time in which to request an extension of the deadline. AR 102. Plaintiff directed attention to the evidence that he was not physically present in Tikrit on July 1, 2004, when he was allegedly shown the evaluation. AR 102.
Finally, Plaintiff challenged the Review Board's conclusion that the lack of use of a Support Form was inconsequential because that is not a basis for an appeal. AR 108. Plaintiff points out that the cited regulations state that that it cannot be the sole grounds for appeal, but that he is not claiming it is the sole grounds, as that error was accompanied by numerous other procedural violations.
In June of 2009, the ABCMR denied Plaintiff's application in full. AR 80. Despite Plaintiff having submitted an application consisting of 147 pages of argument and exhibits (detailed extensively above), see AR 91-238,
Subsequent to the ABCMR's denial of his application, on December 28, 2009, Plaintiff filed a complaint in the United States Court of Federal Claims raising the same issues he had asserted before the ABCMR. See AR 49. However, by decision of July 8, 2010, the court remanded the matter to the ABCMR so that it could consider new evidence submitted by Plaintiff that included a Meritorious Medal, AR 63, and two very favorable Officer Evaluation Reports, AR 59-62, that post-dated
The ABCMR treated the remand as request for reconsideration of the prior denial in light of the new evidence. AR 41. And, on August 26, 2010, the ABCMR denied the request for reconsideration because the new evidence submitted, all of which post-dated the relevant time frame at issue in the contested Iraq Deployment Evaluation, did not show that the rating or comments in the evaluation were incorrect or unjust. AR 41-44.
After the ABCMR denied reconsideration, the matter went back before the Court of Federal Claims. But shortly after its return to the court, the Army moved to have the matter remanded to the ABCMR. See AR 16. The Army sought a narrow remand solely on the basis that it appeared that the Iraq Deployment Evaluation "erroneously indicated that [Plaintiff] did not comply with [the] Army weight regulation," requiring remand so that the ABCMR could "correct this apparent error." AR 16-18. Without waiting for a response from Plaintiff, the court again remanded the matter to the ABCMR.
Upon remand, on March 22, 2011, the ABCMR again treated the remand as a request for reconsideration, and it corrected the erroneous notation in the Iraq Deployment Evaluation that Plaintiff had failed to meet the Army's weight and height requirements. AR 3-9. It also removed the last sentence in Major Doyle's rating narrative stating that Plaintiff "was unable to take the APFT during this period due to deployment for combat operations/contingency operations." AR 8. But the ABCMR concluded that this "administrative error" did not justify deletion of the Iraq Deployment Evaluation, and that the changes would not have changed the outcome of Plaintiff's prior promotion non-selections. AR 8.
After the third trip to the ABCMR, Plaintiff's case returned to the Court of Federal Claims. There, the government renewed its motion to dismiss. On May 31, 2012, the Court of Federal Claims dismissed Plaintiff's claims concerning backpay and transferred to this Court the remainder of the case seeking APA review of the ABCMR's decisions. Once in this Court, Plaintiff filed a second amended complaint on May 22, 2013. Pl.'s Compl., ECF No. 7. The administrative record was submitted on August 9, 2013, and the parties have cross-moved for summary judgment.
Action Under Rule 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate 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 a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does not apply because of the court's limited role in reviewing the administrative record. See Nat'l Wilderness Inst. v. U.S. Army Corps of Eng'rs, 2005 WL 691775, *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995), amended on other grounds, 967 F.Supp. 6 (D.D.C. 1997).
Under the APA, the agency's role is to resolve factual issues to arrive at a decision that is supported by the administrative record, while "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." Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985); see also Nw. Motorcycle Ass'n v. U.S. Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994) ("[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record."). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir. 1977), cited in Bloch v. Powell, 227 F.Supp.2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C.Cir. 2003).
Under the APA, an agency action may be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Review of agency actions under the "arbitrary and capricious" standard is "highly deferential" and "presumes the agency's action to be valid." Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir. 1981). In assessing an agency decision, a court reviews whether "the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotation marks omitted). The scope of the Court's review under this standard "is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "[A] reviewing court may not set aside an agency [decision] that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the
Moreover, while judicial review of an agency's actions is generally narrow and subject to a presumption of validity, review of the ABCMR's decisions in particular under the APA is "unusually deferential." See Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir. 2006) (quoting Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir. 1989)). Military boards such as the ABCMR are entitled to greater deference than civilian administrative agencies. Calloway v. Brownlee, 366 F.Supp.2d 43, 53 (D.D.C.2005) (citing Kreis v. Air Force, 866 F.2d 1508, 1514-15 (D.C.Cir. 1989)). When reviewing a decision of the ABCMR, a court's "inquiry focuses not on whether the Army was `substantively correct' ... but rather on whether the ABCMR's explanations for that choice demonstrate that [a] defendant[ ] `permissibly exercised [its] discretion and made a choice that is supported by at least substantial evidence.'" Hill v. Geren, 597 F.Supp.2d 23, 29 (D.D.C. 2009) (internal citation omitted). A court need only find that the decision of a military review board "minimally contains a rational connection between the facts found and the choice made." Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir. 1997) (internal quotation marks and citations omitted). At the same time, "[h]owever, the Board's action must be supported by reasoned decisionmaking," Haselwander v. McHugh, 774 F.3d 990, 996, No. 12-5297, 2014 WL 7234775, at *6 (D.C.Cir. Dec. 19, 2014) (internal quotation marks omitted), and its decision must respond to all of a plaintiff's non-frivolous arguments that have the potential to affect the Board's ultimate decision, Frizelle, 111 F.3d at 177.
"An officer's OERs are presumed to be `administratively correct' and to `[r]epresent the considered opinions and objective judgment of the rating officials at the time of preparation.'" Cone v. Caldera, 223 F.3d 789, 792 (D.C.Cir. 2000) (quoting Army Regulation 623-105, at ¶ 532);
In this case, Plaintiff argues that he has presented sufficient evidence to overcome the presumption of regularity, see Cross-Mot. for Summ. J. at 8, 22, and the Court agrees.
The problems with the Iraq Deployment Evaluation are numerous and well-documented. First, the Commander's Inquiry, the Department of Justice Attorneys who requested a remand, and the ABCMR on remand all concluded that the height and weight information in the Evaluation was erroneous, as was the entry indicating that Plaintiff was not in compliance with Army body composition regulations. AR 8, 18, 170. Second, the Commander's Inquiry concluded that despite LTC Fischer indicating that he had used a support form in preparing Plaintiff's evaluation, that indication was not correct, AR 169, and the Review Board ordered that the "yes" indication be removed.
Additionally, the Review Board was unable to find any documentation to support the rating officials' position that they counselled Plaintiff in accordance with Army regulations. See AR 194. It nevertheless chose to credit the rating officials' statements over those of Plaintiff, opining that "under the environment in which [the evaluation] was rendered, the routine administrative functions, such as documenting counseling, became more difficult." AR 194.
When Plaintiff sought to challenge the Iraq Deployment Evaluation by requesting a Commander's Inquiry six days after he received the referral e-mail, that too resulted in irregularity, rather than regularity. Although Army regulations require that the Commander's Inquiry be forwarded to Department of the Army Headquarters not later than 120 days after the OER's thru date, in Plaintiff's case, the Inquiry did not begin until more than 830 days (over 27 months) after his initial request, see AR 172, 256, and it was not completed until 51 days (over 7 weeks) later. The Commander's Inquiry itself found that that the delayed Inquiry violated Plaintiff's procedural due process rights. AR 169. And when the extremely critical Commander's Inquiry was finally issued, the Review Board ignored it without any official explanation.
Despite these many irregularities, the ABCMR neither held that Plaintiff had overcome the presumption of regularity nor explained how the presumption could continue to be applied in such circumstances. Given the ABCMR's finding that the Commander's Inquiry "was not handled in accordance with applicable regulation," the results of the very critical Commander's Inquiry recommending that the Iraq Deployment Evaluation be deleted, the numerous errors in the Iraq Deployment Evaluation found by the Review Board and the ABCMR, and the many
The misapplication of the presumption of regularity is not the only error that must be corrected on remand. Indeed, the bulk of Plaintiff's argument before this Court is dedicated to highlighting numerous factual and legal arguments that he presented to the ABCMR, but that the ABCMR's decision failed to resolve. The government, on the other hand, contends that the ABCMR's decision adequately addressed Plaintiff's arguments by identifying them and concluding that they were inadequate. Finding that the ABCMR failed to respond to a number of Plaintiff's non-frivolous claims that could have affected its decision, the Court holds that the ABCMR's decision was arbitrary and will remand so that it may consider and respond to all of Plaintiff's potentially meritorious arguments.
It is well-established that a decision by the ABCMR that fails to address a plaintiff's non-frivolous, material arguments is arbitrary. See, e.g., Frizelle, 111 F.3d at 177 (holding that the Board's failure to respond to two arguments that were facially non-frivolous and that could have affected the matter's ultimate disposition was arbitrary); Poole v. Harvey, 571 F.Supp.2d 120, 126 (D.D.C. 2008) ("[B]ecause [plaintiff's] argument to the ABCMR was non-frivolous and potentially meritorious and the ABCMR failed to address it, this court has no choice but to determine that the ABCMR's decision was arbitrary and capricious."). Critically, it is not enough for the ABCMR simply to identify a plaintiff's non-frivolous arguments without responding to them, either by addressing the arguments' merits or explaining why the merits need not be addressed. Rudo v. Geren, 818 F.Supp.2d 17, 26-27 (D.D.C. 2011) (holding that ABCMR's decision was arbitrary where it contained a vague acknowledgment of plaintiff's argument unaccompanied by any discussion of the argument or explanation as to why it need not be addressed).
In this case, as in Rudo, the ABCMR acknowledged many of Plaintiff's arguments only to fail to address or resolve those arguments in any discernible way in its analysis. For example, with respect to the issue of the one-day suspense date, the ABCMR adopts the Review Board's conclusion that one day was sufficient because Plaintiff had previously seen the evaluation on July 1, 2004. AR 85, 88. But the ABCMR does not even mention, much less grapple with, Plaintiff's evidence that he was not physically present in Tikrit on July 1, 2004, when he was allegedly shown the evaluation. Id.; see also Roberts v. Harvey, 441 F.Supp.2d 111, 122 (D.D.C. 2006) (remanding where the ABCMR "failed to grapple with what appears to be a substantial issue"); Mori v. Dep't of the Navy, 917 F.Supp.2d 60, 64 (D.D.C. 2013) ("By not discussing plaintiff's evidence, the Secretary leaves plaintiff and the Court to
Neither does the ABCMR engage with Plaintiff's argument that LTC Fischer's November 2005 memorandum stating that Plaintiff had failed to respond by a November 2004 suspense date intentionally misrepresented the one-day suspense date given to Plaintiff in August 2004.
Similarly, the ABCMR did not respond to Plaintiff's argument that the Commander's Inquiry showed that the contested evaluation "seem[ed] to have been influenced by intense pressure by COL Kamena" on the rating officials that interfered with the requirement that raters be objective and unbiased. See AR 97, 174.
Thus, on remand, the ABCMR must reconsider Plaintiff's case and, without application of any presumption of regularity, reassess Plaintiff's claims, specifically addressing the following questions:
1) Whether Plaintiff was shown the proposed evaluation on July 1 (all indications are that the raters claim to have done this in person),
2) If the ABCMR on remand concludes that Plaintiff was not shown the proposed evaluation on July 1, it must then assess whether a one day suspense date is reasonable. In making this assessment, it must take into consideration that Plaintiff was deployed in a war zone and heed the Review Board's conclusion that, in a war zone, "routine administrative functions, such as documenting counselings, became more difficult." See AR 194. And, if it does thus conclude that Plaintiff was not shown the proposed evaluation on or about July 1, it must also assess the raters' credibility considering they made specific and unequivocal statements that Plaintiff was shown the evaluation then.
3) Whether there is any evidence concerning when Plaintiff's rating chain changed from Major Bradley to those who prepared the Iraq Deployment Evaluation, and whether those raters had been in place for the 90-day period that Plaintiff claims is necessary. This assessment must be made without any presumption and should address whether a change of rater evaluation had to be prepared as a result.
4) Additionally, the ABCMR must address Plaintiffs' arguments concerning the subsequent OER that have never been thoroughly addressed.
But the Court wishes to make clear that, despite the numerous errors set forth above, the Court does not take a position
The substance of the negative evaluation is focused on three issues: 1) a conflict of interest caused by Plaintiff's provision of legal assistance; 2) Plaintiff's role in the success of the NGO conference; and 3) Plaintiff's failure to follow orders in relation to the CPA-N visit.
Plaintiff has identified, and the record reflects, one documented instance in which his superiors complained about a purported conflict of interest. That instance clearly took place after the evaluation period had concluded but before the evaluation was completed by Plaintiff's raters. See AR 288-91. But, without describing the evidence relied upon, both the Review Board and the ABCMR concluded that the post-review period incident was not the instance reflected in the Iraq Deployment Evaluation. Instead, the Review Board concluded that conflicts of interest occurred during the reporting period, and the ABCMR appears to have implicitly adopted that conclusion. But the record reflects no specific instances that occurred within the review period. On remand, the ABCMR must further explain the basis for its conclusion after a searching review of the evidence and without the application of the presumption of regularity.
As to the NGO conference, the record does not contain evidence, either positive or negative, about the Plaintiff's performance in putting on the Sulaymaniyah conference. The Plaintiff's evidence indicates that he was involved in putting on the conference and that the conference was well-received. But unless the Kirkuk NGO conference referenced in Major Anthony Bradley's letter of support, AR 121-22, is the same Sulaymaniyah NGO conference at issue in the contested OER, it appears that the administrative record does not contain evidence of Plaintiff's specific contributions to the success of the conference.
As to the CPA-N Visit, the evidence in the record is conflicting. Plaintiff supports his position that the negative comments are attributable to conflicting agendas and a personal vendetta, not poor performance on his part, with statements from CPA-personnel. See AR 125-128. But, by all accounts, there was a powerful conflict between the CPA-N personnel and Plaintiff's chain of command. See AR 125-129. Thus, the fact that individuals with counter-interests support Plaintiff's position may actually strengthen the raters' position that Plaintiff failed to follow his command's orders. But, the ABCMR
Finally, if the ABCMR reaches conclusions that counter specific statements made by the raters (for example, that LTC Fischer did not receive and consider Plaintiff's support form in his review, or that Plaintiff could not have been shown the proposed evaluation on July 1 despite the raters' statements to this effect), it must specifically assess that rater's credibility on all issues, not just that one.
For the foregoing reasons, the Court grants summary judgment in favor of Plaintiff and remands the matter to the ABCMR to reassess Plaintiff's claims within the next 180 days. The Court shall retain jurisdiction over this matter while the remand is pending. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued.
