Hardy v. Geren ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEVEN A. HARDY, :
:
Plaintiff, :
:
v. : Civil Action No. 09-0660 (JR)
:
JOHN M. McHUGH, Secretary of the :
Army, :
Defendant. :
MEMORANDUM
Plaintiff is a retired United States Army Reserve
officer. He sues the Secretary of the Army,1 alleging, in four
counts: violations of the Privacy Act, 5 U.S.C. § 552a, because
the Army (1) maintained an inaccurate General Officer Memorandum
of Reprimand (“MOR”) in his file; and (2) allowed him to suffer
adverse determinations based on the inaccurate MOR; and
violations of the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 702, et. seq., because (3) the Army Board for Correction of
Military Records (“ABCMR”) arbitrarily and capriciously denied
his application to correct the inaccurate MOR; and (4) the ABCMR
arbitrarily and capriciously failed to recommend him for
consideration by a Special Selection Board (“SSB”).2 Hardy
1
Pursuant to Fed. R. Civ. P. 25(d), John McHugh is
substituted as the defendant in his official capacity.
2
Under 10 U.S.C. § 628(b), the Secretary of the Army has
discretion to appoint a group of five or more officers to
determine whether a non-selected person should be recommended for
promotion due to “material unfairness” in the selection process.
requests that this Court order the Army to remove the MOR from
his record, order the Army to determine if he should be
considered for promotion by an SSB, and award him damages,
attorneys’ fees, and costs.
Factual Background
Hardy served in the Army for more than 35 years. While
on active duty, he also pursued a bachelor’s degree at a total of
six different institutions. AR 78. One of those institutions
was Hawaii Pacific University, where he took courses from late
1995 to early 1997. Compl. ¶ 31. Believing that he had
completed the requirements necessary to qualify for a bachelor’s
degree in anthropology, Hardy asked HPU to send his transcript to
the Army for inclusion in his records. AR 102. At some point
after he made that request, the degree was listed on Hardy’s
official Army records. Subsequently, the Army selected Hardy to
attend the Army’s National Defense University, where he earned a
master’s degree.
In fact, Hardy did not have a bachelor’s degree from
HPU. He asserts that he discovered the error only in March
2003, when the Army conducted an informal investigation of him
under Army Regulation 15-6, after his ex-wife made entirely
unrelated allegations about security clearance violations. AR
50-52. The Army found those allegations to be baseless, but the
investigation uncovered questions about Hardy’s college degree.
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While the investigation was on-going, the Army
reassigned Hardy from a new post in Colorado Springs to a
temporary position in Virginia. AR 103. Believing that he would
eventually make his way back to Colorado Springs, Hardy left his
possessions - including his academic records - behind. AR 103.
When an investigator asked for proof of his HPU degree, Hardy
answered that his records were in storage, and instead requested
an official transcript from the university. AR 54, 103. HPU was
slow to respond to his request, but eventually notified him that
he had not completed the degree. AR 7. The Army emphasizes
that, during the investigation, Hardy represented that he had
documentation in his stored belongings in Colorado, AR 88, 90-1,
but he was never able to produce it. AR 52.
In his final report, the investigator made the
following findings: Hardy (1) did not have a bachelor’s degree of
science in anthropology from Hawaii Pacific University when he
applied for the 2000 USAR Professional Development Education
Board (PDE); (2) was reckless, by his own admission, in allowing
the entry about his degree to remain on his Officer Record Brief
while his application was under consideration by the PDE (even
though his conduct was not clearly intentional, it amounted to a
negligent misrepresentation to the board); (3) was reckless in
allowing the degree entry to remain on the Officer Record Brief
he submitted to Colonel Robinson for use by the National Defense
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College, with the result that he was awarded a master’s degree in
error; (4) did not use this ORB for any other competitive board;
(5) did not correct the misrepresentation after the Army’s
investigation (the failure to correct amounting to an intentional
misrepresentation); (6) knew he could not substantiate the
degree; and (7) would not have been selected for the National War
College if it had been known that he did not have a bachelor’s
degree. AR 52.
As a result of the 15-6 findings, the Army issued an
MOR on August 15, 2003, reprimanding Hardy for repeatedly
misrepresenting his educational credentials. The MOR stated,
“[Y]ou repeatedly misrepresented your educational
credentials for official purposes. Your
misrepresentations resulted in your selection for
resident senior service college attendance and caused
the National Defense University (NDU) to incorrectly
issue a masters degree to you. . . . [Y]ou
misrepresented your credentials to secure yourself a
highly coveted resident military education opportunity
and credential.” AR 60.
Hardy immediately disputed the investigator’s findings
and the MOR, arguing that his mistake was not intentional and
insisting that he did not specifically apply to the NDU, rather
he applied to “Any Resident School,” some of which did not
require a bachelor’s degree for admission. AR 62. He did
acknowledge that he was reckless in failing to correct the error.
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In April 2004, the Army referred the case to a Board of
Inquiry to determine whether Hardy should be separated from the
Army. AR 71-72. The BOI determined that Hardy’s derelict
failure to review the academic credentials in his file resulted
in a “negligent misrepresentation” of his educational level. The
BOI found that this conduct demonstrated poor judgment in “not
aggressively pursuing confirmation of the academic entries
contained in his ORB,” but that it was not misconduct requiring
separation from the Army. AR 83.
After the BOI decision, the MOR remained in Hardy’s
file. Hardy was not selected for promotion to the rank of
colonel in 2004, 2005 and 2006. AR 67-69. After he was notified
of his 2004 non-selection, he requested that the Department of
the Army Suitability Evaluation Board (“DASEB”) transfer his MOR
to the restricted part of his file. The DASEB denied Hardy’s
initial request, but in November 2007, after two more non-
selections, the DASEB granted Hardy’s request to transfer the MOR
to the restricted part of his file. AR 142.
On December 31, 2007, Hardy was released from active
duty and transferred to the United States Army Reserve Control
Group. AR 9.
In January 2008, Hardy filed an application with the
ABCMR, requesting that the MOR be voided, that he be considered
for promotion to colonel by a SSB, and that he receive additional
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pay, back pay and credit for service. AR 13-40. The ABCMR
denied his application, finding that the MOR was neither
factually incorrect nor inaccurate. The ABCMR reasoned that,
even though the 15-6 investigation and the BOI had both found it
unclear whether Hardy had acted intentionally, their findings of
“negligent misrepresentation” were consistent with the MOR. AR
1-11.
Legal Standards
Hardy brings this case under two statutes - the Privacy
Act and the APA. The Privacy Act requires agencies to “maintain
all records which are used by the agency in making any
determination about any individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination.” 5 U.S.C.
§ 552a(e)(5). A civil action is available to correct an
inaccurate record that the agency has refused to amend, 5 U.S.C.
§ 552a(d)(1)-(3), and to individuals who suffer an adverse
determination caused by an inaccurate record, 5 U.S.C.
§ 552a(g)(1)(C).
Under the APA, the court can set aside Corrections
Board decisions that are “arbitrary, capricious or not based on
substantial evidence.” See, e.g., Chappell v. Wallace, 462 U.S.
296, 303 (1983). “When reviewing a decision by a military
Correction Board, a Court must do so under an ‘unusually
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deferential application of the arbitrary and capricious standard
of the APA.’” Lebrun v. England, 212 F. Supp. 2d 5, 14 (D.D.C.
2002). That “unusually deferential” standard means that a
Corrections Board need only provide a “rational connection”
between the facts and the ultimate decision. See, e.g., Frizelle
v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997).
The Army argues that it did not violate the Privacy Act
because the MOR was factually accurate, because the BOI findings
did not undermine the MOR, and because, even if the MOR was
factually inaccurate, it did not cause the adverse action against
Hardy. As for the APA claims, the Army argues that the ABCMR is
entitled to additional deference from the Court where, as it did
in this case, the Board provided a rational explanation for its
decision. Finally, the Army argues it would be improper for this
Court to award damages because the Army did not act willfully or
intentionally. [Dkt. #6]. Hardy cross-moves for summary
judgment on Counts 1, 3 and 4, arguing that the BOI findings
discredited the factual assertions relied upon in the MOR and
that the ABCMR ignored the BOI findings. As for Count 2, he
argues that a genuine issue of material fact exists as to whether
the MOR was the proximate cause of the adverse action. [Dkt.
#9].
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Analysis
For Hardy’s Privacy Act claims, the question is whether
the Army’s judgment and decision to reprimand him rendered his
official file “inaccurate.” As one might expect, the Privacy Act
does not authorize a court to substitute its own judgment for an
agency’s. However, a court may correct an agency’s judgment or
opinion that is based upon clearly erroneous facts. See, R.R. v.
Dep’t of the Army, 482 F. Supp. 770, 774 (D.D.C. 1980).
The “judgment” that Hardy focuses on is the MOR’s
implication that he intentionally misrepresented his educational
credentials to gain admission into the NDU. Hardy argues that
this conclusion is clearly erroneous because it has been
discredited by the BOI findings. There are several problems with
this argument. First, the sentence highlighted by Hardy - “you
misrepresented your credentials to secure yourself a highly
coveted resident military education opportunity and credential” -
can be read to imply a conclusion about intent, but it is hardly
the thrust of the MOR. Rather, the MOR focuses on the causal
relationship between Hardy’s misrepresentation and his erroneous
admission into NDU and receipt of a master’s degree. AR 60.
Second, the MOR is based on the same set of facts, and comes to
essentially the same conclusion, as all of the other
documentation in this case: the 15-6 investigation, the BOI
findings, and Hardy’s own rebuttal letter. AR 52, 60, 62-3, 83.
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Finally, even if the MOR were somehow inconsistent with the BOI
findings, Hardy has no authority for the proposition that the
Army is obligated to reconcile its conclusions, and it is not
clear that either would outweigh the other.3 That the BOI
decided to retain Hardy is irrelevant, because the MOR did not
address that issue at all.
Hardy presents the same facts that have been considered
by various Army boards and asks me to substitute my judgment for
theirs. I may indeed believe that it is too harsh to reprimand a
lieutenant colonel for something that may have been prompted by
an administrative error, or I may find it difficult to believe
that an army officer could mistakenly believe that he graduated
from college when he was actually a few credits shy of doing so,
but my belief is of no consequence when the Army’s judgment is
based on accurate facts.
Hardy’s APA claim is easily disposed of. The ABCMR
provided essentially the same explanation as I just did in its
denial of Hardy’s application, and it is neither arbitrary nor
3
Hardy argues that the BOI procedure is a “formal”
process, and therefore, is more thorough. Because I find that
the BOI findings are consistent with the MOR, there is no need to
address which investigation would likely come to the more
accurate result.
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capricious. Nor did the ABCMR ignore the BOI findings: in its
final decision, the ABCMR specifically addresses them. AR 8, 10.
* * *
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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