Mori v. Department of the Navy , 917 F. Supp. 2d 60 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LIEUTENANT COLONEL MICHAEL )
D. MORI, USMC, )
)
Plaintiff, )
)
v. ) Civil Case No. 07-2167 (RJL)
)
DEPARTMENT OF THE NAVY ) F l L E D
) v
Defendant. ) JAN l 3 2913
!\~2" clerk u.s r.z»,~:.wcx_s »'zani<.r‘uz>f€y
MEMORANDUM ()PINI()N Cr)urts mr the D¢stnct 01 Co.umbla
(January @, 2013) [## 29, 301
Before this Court are renewed cross-motions for summary judgment by Lieutenant
Colonel Michael Mori ("plaintiff’) and the Department of the Navy ("defendant") related
to defendant’s decision to deny plaintiffs request for a Special Selection Board to review
plaintiffs non- promotion decision. Because the Court believes that defendant’s denial
to convene a Special Selection Board was arbitrary and capricious, plaintiffs renewed
motion for summary judgment is GRANTED, defendant’s renewed motion for summary
judgment is DENIED, and this case is REMANDED to the Secretary of the Navy to
convene a Special Selection Board.
BACKGROUND
Plaintiff is a judge advocate in the United States Marine Corps ("USMC"). Am.
Compl. {Hl 4, 6 [Dkt. # 27]; A.R. at 5. In November 2003, the USMC assigned plaintiff to
serve as defense counsel for David Hicks, a suspected terrorist detained at Guantanamo
Bay. Ia'. 1 7. By 2004, plaintiffs efforts had generated widespread civilian and military
media coverage. ld. jj ll; see, e.g., A.R. at 8-27 [Dkt. # 7-1].
According to federal statute, the Department of the Navy awards promotions to
USMC officers by convening selection boards ("SBS"). 10 U.S.C. § 61 l(a). These SBs
must consist of at least five military officers who have attained the rank of major or
higher. Id. § 6l2(a)(l). SB members must swear that they will perform the SB’s duties
without prejudice or partiality, z``a’. § 613, and the members are prohibited from disclosing
details about an SB’s proceedings, ia'. § 613a. The SB is convened by a precept, a set of
guidelines from the Secretary with which the SB must comply. Defs Renewed Mot. for
Summ. J. ("Def s Mot.") at 9 [Dkt. # 29]. If denied a promotion by the SB, an officer can
petition the Secretary of the Navy ("Secretary") to convene a Special Selection Board
("SSB") to review the decision. SECNAV Instruction l420. lB, Def s Mot., Ex. 3, jj
24(c). The Secretary must convene an SSB if he determines that "material unfairness"
affected the SB. Id. § 628(b)(l). "Material unfairness" exists if the SB’s decision was
"contrary to law in a matter material to the decision of the board or involved material
error of fact or material administrative error . . . ." Id. § 628(b)(1)(A), For USMC
officers, the Secretary considers the recommendation of the Commandant of the Marine
Corps ("Commandant") before rendering a decision. SECNAV Instruction 1420. lB,
Defs Mot., Ex. 3,1l 24 (n)(l).
I. Plaintiff’s First Denial of Special Selection Board
In the fall of 2005, an SB denied plaintiff a promotion to lieutenant colonel. A.R.
at 2-3. On June 6, 2006, plaintiff petitioned the Secretary for an SSB to review his
promotion denial. A.R. at 4-7. In his SSB request, plaintiff contended the SB was biased
against him for defending Hicks and for challenging the validity of the military
commission process. A.R. at 4-5.
His SSB request included several pieces of evidence. Plaintiff attached news
reports of his defense of Hicks and an affidavit from a USMC officer indicating that
several USMC officers from the same community as an SB member felt plaintiffs
advocacy had been disloyal. See A.R. at 8-27. He also noted that only one member of
the SB was a fellow judge advocate, a factor that may have prevented the SB members
from understanding his ethical responsibility to vigorously defend Hicks. See Am.
Compl. 11 15, 17-18; A.R. at 5. Plaintiff also indicated that, of the three judge advocates
assigned by the Department of the Navy to represent Guantanamo detainees, not one
received a promotion from an SB during their representation of detainees, A.R. at 7. He
also noted that many of the SB members had served in combat roles in the war on terror,
which he suggested may have biased them against a suspected terrorist’s counsel. See
A.R. at 6.
Plaintiff also contended that two members of the board had previously been in
direct adversarial relationships with him. Am. Compl. 11 23, 25, 28-29. First, eight
years earlier, Brig. Gen. Angela Salinas had referred charges to a special court-martial
against a Marine whom plaintiff then successfully defended. Id; see also A.R. at 6, 28-
29. Second, Maj. Gen. Ennis, the ranking SB officer, had directed a military department
whose personnel interrogated Hicks. A.R. at 6. Because "[m]uch of the criticism of the
military commissions focused on obtaining and using evidence acquired through
improper interrogation techniques," plaintiff believed that his representation of Hicks
placed him in a "directly adversarial position" with Maj. Gen. Ennis. Am. Compl. 1 23;
see also A.R. at 6. Plaintiff also noted that a candidate’s former adversarial position
toward an SB member justified an SSB in other circumstances. See A.R. at 6-7.
While plaintiffs commanding officer recommended approval of plaintiffs SSB
request, see id. at 24, the Secretary denied the request on February 15, 2()07, see ia'. at 3.
The denial consisted of a memorandum drafted by the Commandant and signed by the
Secretary stating that plaintiff failed to provide "convincing evidence" to support an
inference of bias. Id. at 2-3.
Plaintiff commenced this action on November 30, 2007, challenging the
Secretary’s denial of his request on several grounds, including the "convincing evidence"
standard of proof employed by the Secretary. Compl. 11 42-48 [Dkt. # l]. Following
cross-motions for summary judgment, judge Ricardo M. Urbina granted plaintiffs
motion and remanded the case to the Secretary for clarification on the standard of proof
involved. Order on Mot. for Summ. J. [Dkt. # 18]; see Mem. and Op. at 8-12 [Dkt. # 19].
II. Plaintiff’s Second Denial of Special Selection Board
On February 23, 2011, the Commandant once again recommended that the
Secretary deny plaintiffs SSB request. Addendum to A.R. ("A.R. Add.") at 79-84 [Dkt,
# 26-1]. In a memorandum to the Secretary, the Commandant reasoned that plaintiff was
required to demonstrate by a "preponderance of the evidence" that the SB "acted contrary
to law or involved material error." Id. at 80. The Commandant concluded that plaintiff
had failed to satisfy this burden because plaintiff failed to specify any material error and
failed to connect his evidence of bias to the SB members’ alleged violation of their oaths.
See id. at 83. The Secretary adopted the Commandant’s recommendation in its entirety
and again denied Plaintiff s request for an SSB on July 2 l, 2011. Id. at 84.
Plaintiff then amended his complaint on October l4, 201 1, alleging the Secretary’s
second denial of the SSB request was arbitrary, capricious, not supported by substantial
evidence, materially erroneous, and otherwise contrary to law. Am. Compl. 11 49-53.
Plaintiff alleged that the SB was "materially unfair, acted contrary to law, and was tainted
by material error." Id. 1 50. He also contended that the Secretary should have conducted
a factual investigation of his claims by interviewing the SB members. See ia'. 1 53; Pl’s
Opp’n to Def s Renewed Mot. for Summ. J. Mot. and Pl’s Renewed Cross-Mot. for
Summ. J. ("Pl’s l\/lot.") at 31-33 [Dkt. # 30]. Plaintiff asked the Court to remand the case
to the Secretary with instructions to convene an SSB. See Am. Compl. at ll.
Both parties have renewed their motions for summary judgment, which are ripe
for adjudication and are now before this Court.l
STANDARD OF REVIEW
Summary judgment is appropriate when the movant demonstrates that no genuine
issue of material fact is in dispute and that the moving party is entitled to judgment as a
l This case was transferred to my docket from Judge Urbina on April 20, 2012.
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matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden, and the court
will draw "all justifiable inferences" in favor of the opposing party. Ana’erson v. Lz'berty
Lobby, Inc., 477 U.S. 242, 255 (1986). "Thus, if the evidence presented by the opposing
party is ‘merely colorable’ or ‘not significantly probative,’ summary judgment may be
granted." Barke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002) (quoting Anderson, 477
U.S. at 249-50); see also Monlgomery v. Chao, 546 F.3d 703, 708 (D.C. Cir. 2008) ("The
possibility that a jury might speculate in the [opposing party’s] favor . . . is simply
insufficient to defeat summary judgment.").
With respect to the Court’s review of the Secretary’s decision to deny a SSB, the
governing statute provides tha "[a] court of the United States may review a
determination by the Secretary . . . not to convene a special selection board . . . if the
court finds the determination to be (i) arbitrary or capricious; (ii) not based on substantial
evidence; (iii) a result of material error of fact or material administrative error; or (iv)
otherwise contrary to law." 10 U.S.C. § 628(g)(l)(A). If the Court sets aside a decision
not to convene an SSB, "it shall remand the case to the Secretary . . . , who shall provide
for consideration by such a board." Ia'. at § 628(g)(1)(B).
Under the "arbitrary or capricious" standard of review, our Circuit has recognized
that judicial review of military personnel decisions must be "unusually deferential."
Mueller v. Winter, 485 F.3d 1191, 1198 (D.C. Cir. 2007) (citing Musengo v. Whz``te, 286
F.3d 535, 538 (D.C. Cir. 2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000)).
However, while judges on this Court have no interest in undermining military personnel
decision-making through aggressive judicial review, see Mueller, 485 F.3d at 1198, they
equally have no intention to simply rubber-stamp the Secretary’s decision without any
further review.
In addition to conducting an "arbitrary or capricious" analysis, the Court also must
consider whether the denial was based on "substantial evidence," or evidence that would
have made it possible for a reasonable jury to reach the same decision. See Allerzlown
Mack Sales and Serv., Inc. v. Nat’l Labor Relatz``ons Ba'., 522 U.S. 359, 366-67 (1998)
(citations omitted).z ln addition, the Court must ensure through its "material . . . error"
review that no "error of fact or administrative/procedural error . . . more likely than not . .
. deprived the officer concerned of a fair and impartial consideration by the board." See
Mz``ller v. Dep ’t of Navy, 476 F.3d 936, 939 (D.C. Cir. 2007) (quoting SECNAVINST
regulations).3 Finally, this Court also may find a decision "contrary to law" if it
"deprive[d] the officer concerned of a constitutional or statutory right." Id.
2 Defendant argues that the substantial evidence standard does not apply to this case
because the Secretary has not prescribed a regulation implementing this type of scrutiny.
Dep’t of the Navy’s Combined Mem. Opposing Lt. Col. Mori’s Renewed Cross-Mot. for
Summ. J. and in Reply of Defs Renewed Mot. for Summ. J. ("Def s Opp’n/Reply") at 7
[Dkt. # 31]. However, defendant improperly conflates the Secretary’s authority to
prescribe regulations implementing the SSB process, see 10 U.S.C. § 628(j), with the
Court’s independent judicial review, see id. § 628(g). Indeed, § 628@) expressly prevents
the Secretary from prescribing regulations affecting the Court’s judicial review under §
628(g), which authorizes the Court to conduct a "substantial evidence" review. See ia’. §
628(j) ("Regulations under this subsection may not apply to subsection (g) . . . .").
3 At the time of the Mz'ller decision, the relevant SECNAVINST provision was 1401 .lB.
This provision was recodified on March 28, 2006 as SECNAVINST l420.1B, but the
relevant language was not changed. See Miller, 476 F.3d at 939 n. l. While these
regulations apply only to the SSB’s review and not to the Court’s judicial review, see 10
U.S.C. § 628(]), the Court sees no reason to disagree with the regulations’ language when
conducting analogous judicial review.
DISCUSSION
Even when granted due deference, the Secretary’s decision to deny plaintiffs SSB
request cannot withstand judicial scrutiny for two reasons. First, the decision simply fails
to address certain elements of plaintiff s evidence. Second, the Secretary improperly
dismisses certain examples of plaintiffs circumstantial evidence without explanation.
Because these defects render the Secretary’s SSB decision arbitrary and capricious,
plaintiff s renewed motion for summary judgment must be GRANTED, and defendant’s
renewed motion for summary judgment must be DENIED. How so?
I. Failure to Address Elements of Plaintiff’s Evidence
The first flaw in the Secretary’s SSB decision is its complete silence regarding
several of plaintiffs claims. The decision consists of a five-page memorandum drafted
by the Commandant, the majority of which summarizes the procedural background of the
case. See AR at 80-84. Only the last paragraph contains any analysis of plaintiffs
request_and this analysis ignores much of plaintiff s evidence. Id. at 83-84. By not
discussing plaintiffs evidence, the Secretary leaves plaintiff and the Court to scratch
their heads as to why the Secretary found plaintiffs evidence unpersuasive. An agency
action that lacks explanation is a textbook example of arbitrary and capricious action.
See Citz``zens to Preserve Overlon Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)
(abrogated on other grounds by Calzfano v. Sana’ers, 430 U.S. 99 (1997)) (To determine
whether an agency decision is arbitrary or capricious, "the court must consider whether
the decision was based on a consideration of the relevant factors . . . ."); Occidental
Petroleum Corp. v. SEC, 873 F.2d 325, 338 (D.C. Cir. 1989) ("[l]n order to allow for
meaningful judicial review, the agency must produce an administrative record that
delineates the path by which it reached its decision.")
For example, the Secretary’s decision makes no mention of plaintiffs contention
that a candidate’s former adversarial position toward an SB member has justified an SSB
in other circumstances. See A.R. at 6-7; A.R. Add. at 83. If the Secretary is aware of the
analogous circumstances plaintiff referenced but fails to distinguish them, the Secretary
commits an arbitrary and capricious act. See Fea’. Election Comm ’n v. R0se, 806 F.2d
1081, 1089 (D.C. Cir. 1986) ("[A]n agency’s unjustifiably disparate treatment of two
similarly situated parties works a violation of the arbitrary-and-capricious standard.")
(citation omitted). The Secretary also says nothing about plaintiffs evidence that the
three other Department of the Navy judge advocates assigned to represent Guantanamo
detainees also failed to receive a promotion during their tenure. A.R. at 7; A.R. Add. at
83. Additionally, the decision fails to address the recommendation of plaintiffs
supervising officer that plaintiffs SSB request be approved, see A.R. at 24, evidence
supporting the merit of plaintiffs request. See Defs Mot. at 39 (citing Notice to Court,
Waltman v. Winter, Civ. Action No. 06-844 (D.D,C. Sept. 13, 2006) as evidence of an
SSB investigation ordered where an officer substantiated that applicant’s record merited
promotion).
The Secretary, of course, need not address every aspect of plaintiff s SSB request
at length and in detail. See Frz``zelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) ("[A]n
agency’s decision need not be a model of analytic precision to survive a challenge. A
reviewing court will uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.") (citations and internal quotation marks omitted). But he must
provide enough information to ensure the Court that he properly considered the relevant
evidence underlying plaintiffs request. See Occz'a’ental Petroleum Corp., 873 F.2d at
338. By providing no information whatsoever as to relevant evidence supporting
plaintiffs request, the Court cannot reasonably discern the Secretary’s decision-making
process.
II. Failure to Consider Plaintiff s Circumstantial Evidence
In the few instances where the SSB decision addressed plaintiffs evidence, it
improperly dismissed plaintiffs circumstantial evidence as no evidence at all, without
further discussion. Indeed, our Circuit has repeatedly recognized that there is "no
distinction between the probative value of direct and circumstantial evidence." Doe v.
U.S. Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003). ln fact, circumstantial evidence is
particularly important in bias and discrimination cases, in which direct evidence is either
not present or difficult to obtain. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100
(2003).
Plaintiff presented several examples of circumstantial evidence, including news
articles documenting plaintiff s aggressive challenge to the government and a USMC
officer’s affidavit declaring that other officers viewed plaintiff s legal work with distaste.
See generally A.R. at 8-25. Yet despite the potentially probative value of this evidence,
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the Secretary responded that plaintiff had failed to produce "any evidence that any of the
board members deviated from the precept and/or violated their oath as board members."
A.R. Add. at 83 (emphasis added). Such a conclusion may have been warranted if the
Secretary had explained why he concluded that plaintiffs circumstantial evidence
possessed no or limited value. However, the Secretary provided no such explanation,
simply repeating that plaintiffs evidence "fail[ed] to prove" bias without explaining why.
Ia’.
At a point, the Secretary’s decision appears to explain part of his decision-making
process. When addressing the allegations regarding potential bias by Colonel Salinas
(though not by name), the Secretary suggests that Colonel Salinas’s involvement in the
alleged adverse action was minimal-simply "forwarding a recommendation [and]
conven[ing] a court martial"_and took place more than eight years before plaintiff s SB.
A.R. Add. at 83. While this explanation for dismissing plaintiffs evidence may be "of
less than ideal clarity," Frz``zelle, 111 F.3d at 176, it is certainly better than no explanation
at all. Unfortunately, for defendant, however, much of the remaining SSB decision lacks
any explanation for dismissing plaintiffs other evidence.
For example, defendant alleges that the decision adequately explains the
Secretary’s reasoning because it states that certain elements of plaintiff s evidence
"fail[ed] to connect" and "fail[ed] to prove" the inference of bias that plaintiff sought to
make. AR 83; Def s Opp’n/Reply at 24-25. But again, the decision fails to explain why
an inference of bias is unreasonable from plaintiffs circumstantial evidence. Certainly,
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evidence of bias against plaintiff in the USMC community, when considered alongside
other circumstantial evidence, could support a reasonable person’s conclusion that
members of plaintiffs SB were biased against him. By demanding evidence that
"connect[s]" to bias or "prove[s]" bias, the Secretary does not address the weaknesses of
plaintiffs circumstantial evidence; rather, the Secretary appears to dismiss the
circumstantial evidence simply because it is circumstantial. Without further explanation
supporting its conclusion, the Secretary’s decision cannot stand.
In their briefs, defendant expends much effort attacking the substance of plaintiffs
request. See generally Def s Mot. at 33-36; Defs Opp’n/Reply at 9- 1 8. But the
govemment’s effort is misplaced lt is not the substance of plaintiffs request that creates
an issue here. Rather, it is the Secretary’s inadequate explanation of the process by
which he reached his decision. lt is this Court’s responsibility to insure that agencies
meet their obligation to explain their decisions. See Allentown Mack, 522 U.S. at 374
("Not only must an agency’s decreed result be within the scope of its lawful authority,
but the process by which it reaches that result must be logical and rational. Courts
enforce this principle with regularity when they set aside agency [actions] not supported
by the reasons that the agencies adduce."). In this case, the Secretary failed to meet his
obligation, and defendant cannot fill the holes of the Secretary’s decision by providing
post hoc explanations in its briefs. See Camp v. Pz'tts, 411 U.S. 138, 143 (1973) (When
an agency provides a "contemporaneous explanation of the agency decision . . . [t]he
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validity of the [decision] must, therefore, stand or fall on the propriety of that finding.").i
CONCLUSION
Because the Secretary failed to adequately explain its decision to deny plaintiffs
SSB request, the decision is arbitrary and capricious. As such, plaintiffs renewed motion
for summary judgment is GRANTED, defendant’s motion for renewed summary
judgment is DENIED, and this case is REMANDED to the Secretary of the Navy to
convene an SSB to reconsider the denial of plaintiffs promotion An Order consistent
with this decision accompanies this Memorandum Opinion.
/'
RICHARD\L``L oN
United States ``strict Judge
4 Because the Secretary’s decision cannot withstand judicial review due to a lack of
adequate explanation, the Court does not need to address the parties’ dispute regarding
whether the Secretary was required to conduct an investigation of plaintiffs claims. See
generally Defs Mot. at 36-41; Pl’s Mot. at 31-35; Defs Opp’n/Reply at 18-24.
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