Joseph Hoffler v. James Mattis , 677 F. App'x 119 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2341
JOSEPH W. HOFFLER, Lieutenant Colonel, USAF-Retired,
Plaintiff - Appellant,
v.
JAMES N. MATTIS, Secretary of Defense; LISA S. DISBROW,
Secretary of the Air Force,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, Chief District Judge. (2:14-cv-00063-D)
Submitted: August 31, 2016 Decided: February 22, 2017
Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellant. John Stuart Bruce, Acting United States
Attorney, Matthew L. Fesak, Assistant United States Attorney,
Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph W. Hoffler, a retired Lieutenant Colonel with the
United States Air Force, appeals the district court’s order
dismissing in part and granting summary judgment in part to the
Defendants in Hoffler’s action challenging the Air Force Board
for Correction of Military Records’ (“AFBCMR” or “Board”) denial
of Hoffler’s application for correction. For the reasons that
follow, we affirm in part and dismiss in part.
“We review a grant of summary judgment de novo, employing
the same standards used by the district court.” Randall v.
United States, 95 F.3d 339, 348 (4th Cir. 1996). Summary
judgment is appropriate when no genuine dispute of material fact
exists and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Decisions of the AFBCMR are final agency actions subject to
judicial review under the Administrative Procedure Act. See
Chappell v. Wallace, 462 U.S. 296, 303 (1983). The Board’s
decisions can only be set aside by this court if they are
arbitrary, capricious, not based on substantial evidence, or not
in accordance with law. Id.; Randall, 95 F.3d at 348;
Mickens v. United States, 760 F.2d 539, 541 (4th Cir. 1985); see
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5 U.S.C. § 706(2) (2012). “In determining whether agency action
was arbitrary or capricious, the court must consider whether the
agency considered the relevant factors and whether a clear error
of judgment was made.” Ohio Valley Envtl. Coal. v. Aracoma Coal
Co., 556 F.3d 177, 192 (4th Cir. 2009).
Hoffler contends that the AFBCMR acted arbitrarily and
capriciously in rejecting his claim that he should have been
promoted to colonel by the 1984 promotion board. The scope of
judicial review of military promotion decisions is very limited.
Unless a special selection board (“SSB”) has been convened, our
jurisdiction over military promotion claims is limited to
“review[ing] a determination by the Secretary of a military
department . . . not to convene a special selection board.” 10
U.S.C. § 628(g)(1)(A) (2012); see also § 628(h). No SSB was
convened for Hoffler, and Hoffler did not request that one be
convened. Thus, we lack jurisdiction over Hoffler’s promotion
claim and must dismiss this portion of his appeal.
Hoffler also asserts that the AFBCMR acted arbitrarily and
capriciously in denying his request to remove a letter of
reprimand (“LOR”) from his file. He argues that the Board
failed to consider the determination of an Equal Opportunity and
Treatment (“EOT”) inquiry that the investigation underlying the
LOR was flawed. We disagree. The AFBCMR expressly acknowledged
some of the conclusions of the EOT inquiry that Hoffler alleges
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it overlooked. Moreover, we conclude that the Board acted
reasonably in refusing to remove the LOR. While the Board
acknowledged Hoffler’s attacks on the procedure of the LOR
investigation, it was faced with Hoffler’s own admission that he
committed the reprimanded conduct.
Finally, Hoffler challenges the Board’s refusal to
reinstate his Meritorious Service Medal, which was revoked in
1985. Although the record contains various assertions by
Hoffler as to why the revocation of his medal was improper,
these assertions constitute no more than unsubstantiated
speculation. We concur with the district court that Hoffler has
failed to provide evidence that the discretionary decision to
revoke the medal was inappropriate.
Accordingly, we dismiss Hoffler’s promotion claim and
affirm as to Hoffler’s remaining claims. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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