McGrady v. England , 810 F. Supp. 2d 281 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
JACKSON L. McGRADY )
)
Plaintiff, )
)
v. ) Civil Action No. 05-1651
)
1
DONALD C. WINTER )
Secretary of the Navy, et. al. )
)
Defendants. )
)
___________________________________)
MEMORANDUM OPINION
Plaintiff, Marine Corps Maj. Jackson L. McGrady, brings this
action pursuant to 10 U.S.C. § 628 and the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701, et seq., against Defendants, U.S.
Department of the Navy and Secretary Donald C. Winter, seeking
judicial review of agency decisions relating to Plaintiff’s
military service record and requests for the convening of a Special
Selection Board (“SSB”).2
1
Pursuant to FED. R. CIV. P. 25(d), the current Secretary of the
Navy (“Secretary”), Donald C. Winter, is automatically substituted
as Defendant for former Secretary of the Navy, Gordon R. England.
2
A SSB is a promotion board that convenes separately from the
Navy’s regularly-scheduled annual promotion boards. The Secretary
has the authority to convene an SSB where he “determines that
because of administrative error a person who should have been
(continued...)
This matter is presently before the Court on Defendants’
Motion for Summary Judgment (“Defs.’ Mot.”) (July 25, 2006) [Dkt.
No. 42] and Plaintiff’s Cross Motion for Summary Judgment (“Pl.’s
Mot.”) (Aug. 25, 2006) [Dkt. No. 44]. Upon consideration of the
Motions, Oppositions, Replies, and the entire record herein, and
for the reasons stated below, Defendants’ Motion for Summary
Judgment is granted and Plaintiff’s Motion for Summary Judgment is
denied.
I. Background3
On November 26, 1990, Plaintiff, who was then a First
Lieutenant, received a performance review from Capt. Dennis
Davidson for the four-month period beginning on August 1, 1990 and
ending on November 26, 1990 (“Davidson Report”). AR at 396-97. The
Davidson Report ranked Plaintiff “3 of 3,” indicating he was the
poorest performer compared to the two other officers under
simultaneous review. AR at 396-97. Despite his low ranking,
2
(...continued)
considered for selection for promotion from in or above the
promotion zone by a promotion board was not so considered . . . .”
10 U.S.C. § 628 (a)(1).
3
Unless otherwise noted, the facts set forth herein are undisputed
and drawn from the parties' Statements of Material Facts, submitted
pursuant to Local Civil Rule 7(h), and the Administrative Record
(“AR”). Additionally, unless otherwise noted, references to the AR
are to the copy certified on November 22, 2005.
-2-
Plaintiff subsequently earned promotions to captain and then major.
AR at 284-87.
On December 3, 1998 the Marine Corps issued Order (“MCO”)
P1610.7E, which modified the Performance Evaluation System for
Marine Corps officers and called for a reduction in grade
inflation. MCO P1610.7E, Pl. Ex. 8 (Aug. 25, 2006) [Dkt. No. 44-8].
Shortly thereafter, on August 3, 1999, Plaintiff received a
performance review from Col. Francis Scovel for the period covering
September 1, 1998 through March 15, 1999 (“Scovel Report”). AR at
584-588. In his review, Col. Scovel indicated that Plaintiff was
among the “top 5% of majors [Scovel had] observed in [his] 22 years
of service.” Id. On the basis of his understanding at the time of
MCO P1610.7E, Col. Scovel ranked Plaintiff fifth out of eight, with
eight being the highest score possible. Id.On July 12, 2002, the Commandant of the Marine Corps (“CMC”)4
issued a Marine Administrative Message (“MARADMIN”) announcing that
the Fiscal Year 2004 Lieutenant Colonel Selection Board (“FY 2004
Selection Board”) would convene on October 9, 2003. AR at 155. In
response to the MARADMIN, Plaintiff submitted an application for
promotion to the rank of Lieutenant Colonel. AR at 161-67.
Plaintiff was subsequently notified that he was not selected for
4
The CMC presides over the Marine Corps’ Headquarters and is
required to provide recommendations regarding Marine Corps matters
to the Secretary. 10 U.S.C. § 5043(e)(1).
-3-
promotion by the FY 2004 Selection Board. Plaintiff’s Statement of
Material Facts on Which There is No Genuine Issue ¶ 4 (“Pl.’s Stmt.
of Facts”) (Aug. 25, 2006) [Dkt. No. 44].
In response to this decision, Plaintiff consulted Lt. Col. D.
Crowl regarding his military record. Id. ¶¶ 6,8. In evaluating
Plaintiff’s record, Lt. Col. Crowl identified inconsistencies in
the Scovel Report and informed Plaintiff that negative inferences
could be drawn from the Davidson Report. Id. ¶ 8; AR at 119-20,
479.
Based on Lt. Col. Crowl’s comments, Plaintiff sought to obtain
a letter from Captain Davidson to “ameliorate any negative
inferences” that could be drawn from the Davidson Report. Pl.’s
Stmt of Facts ¶ 10. On April 3, 2003, Plaintiff obtained a letter
from Capt. Davidson stating that he “should have ranked [Plaintiff]
1 of 3” in his performance review but failed to do so, for reasons
unrelated to Plaintiff’s performance. AR at 22. Specifically, Capt.
Davidson explained that:
In that report I ranked First Lieutenant
McGrady 3 of 3. This was not an accurate
ranking. At the time of the report, there was
little doubt that First Lieutenant McGrady was
the more accomplished officer of the three and
I should have ranked him 1 of 3. First
Lieutenant McGrady was clearly superior. I
ranked First Lieutenant McGrady, who was
already a regular officer, behind the other
two officers, both of whom were USMCR, in an
-4-
effort to assist their chances for
augmentation.
I also made the “bonehead” assumption that
First Lieutenant McGrady had limited
aspirations for a career in the USMC and that
the other two Officers were focused on a
career. I was grossly mistaken in my
assumption and live with this poor judgment
constantly.
Further, I did not believe that this report,
even if First Lieutenant McGrady decided to
stay in the Marine Corps, would hinder [his]
career as he was certain for promotion and any
follow-on assignments would show his superb
value to service. I did not believe that my
rankings on a transfer report would negatively
affect [him].
Id.Based on Davidson’s letter, Plaintiff filed an application to
the Board for Correction of Naval Records (“BCNR”)5 on May 6, 2003,
requesting that Capt. Davidson’s 1990 report be corrected to
reflect a ranking of “1 of 3” instead of “3 of 3.” AR at 186.
Acting through the Performance Evaluation Review Board (“PERB”),
the CMC recommended that BCNR deny Plaintiff’s application to amend
the Davidson Report.6 AR at 129-130. On August 26, 2003, BCNR
5
BCNR is a civilian board created by the Secretary pursuant to 10
U.S.C. § 1552. Unless the matter at issue is specifically reserved
to the Secretary, BCNR has authority to take final action to amend
a military personnel record. 32 C.F.R. § 723.6(e).
6
To contest a performance evaluation report, an officer must first
file his request with the CMC. MCO P1610.7E ¶ 5008.2. The CMC
(continued...)
-5-
granted Plaintiff’s application to modify the Davidson Report. AR
at 61.
On September 2, 2003, Plaintiff received a letter from Col.
Scovel regarding the Scovel Report (“2003 Scovel letter”). AR at
535-36. Col. Scovel explained that, although Plaintiff was in the
“top 5%” of majors, he ranked Plaintiff 5 out of 8 based on the
understanding of MCO P1610.7E he had at the time. Id. Col. Scovel
also stated that, if he were to evaluate Plaintiff based on current
procedures, he would rank him 7 out of 8 instead of 5 out of 8:
When [MCO P1610.7E] was published, a primary
goal was to wring inflation out of the
performance evaluation system. We were all
instructed that Bs and Cs were good marks, and
blocks 3 and 4 . . . were fine, as well. When
I marked [then] Major McGrady in the 5th
block, I believed then that this mark would be
viewed as “outstanding” and consistent with a
“top 5%” comment. Since then, however, I
think inflation has returned, at least to some
degree, and the fifth block is now seen as
middle of the road. This was not my
intent . . . . As I now rank officers, a “top
5%” comment equates to a marking in the 7
block.
Id.In light of the amended Davidson Report, on September 16,
2003, Plaintiff requested the Secretary convene a SSB to consider
6
(...continued)
evaluates the request through PERB, which conducts the initial
agency review. MCO 1610.11C ¶ 4a, Pl. Ex. 9 (Aug. 25, 2006) [Dkt.
No. 44-9]. If the CMC, through PERB, denies the application, it is
referred to the BCNR for final agency action. Id. at ¶ 9(h).
-6-
Plaintiff for promotion to Lieutenant Colonel. AR at 1-23. While
Plaintiff’s SSB request was pending, the FY 2005 Lieutenant Colonel
Selection Board (“FY 2005 Selection Board”) considered Plaintiff
for a promotion. In connection with that proceeding, Plaintiff
provided the Board with a copy of the 2003 Scovel letter. Pl.’s
Stmt. of Facts ¶ 47. On January 6, 2004, Plaintiff learned that the
FY 2005 Selection Board denied his promotion to Lieutenant Colonel.
Id.On February 16, 2004, the CMC recommended denying Plaintiff’s
pending SSB request. AR at 28-29. On April 16, 2004, and without
further comment, the Secretary adopted the CMC’s recommendation and
denied Plaintiff’s SSB request. AR at 75.
On December 9, 2004, Plaintiff submitted a request to BCNR to
amend the Scovel Report to reflect a ranking of “7 out of 8"
instead of “5 out of 8.” AR at 582-83. On January 28, 2005, CMC,
through PERB, recommended denying Plaintiff’s record change
application, noting that Scovel’s performance evaluation was
correct at the time it was written and that the 2003 Scovel letter
was only an endorsement for promotion and not an official request
to change Plaintiff’s record. AR at 465-66. On March 22, 2005,
Plaintiff responded to PERB’s recommendation and requested an SSB
-7-
based on the FY 2005 Selection Board’s consideration of the
unamended Scovel Report.7 AR at 472.
On February 7, 2005, Plaintiff submitted a request to the
Secretary for reconsideration of the April 16, 2004 denial of his
SSB request. AR 34-180. On July 25, 2005, CMC recommended that
Plaintiff’s SSB reconsideration request be “disallowed.” AR at
182-85. On August 17, 2005, Plaintiff filed a Complaint seeking
judicial review of the Secretary’s denial of his SSB
reconsideration request. Although, at the time, the Secretary had
not issued an actual decision on Plaintiff’s request, Plaintiff
argued that the reconsideration request should be “deemed denied”
under applicable statutory provisions.
7
In response to PERB’s recommendation, Plaintiff submitted to BCNR
a second letter from Col. Scovel, which requested that the 1999
Scovel Report be amended. In his letter, Col. Scovel stated that:
Failure to change the report unfairly colors
[Plaintiff’s] performance because of the new
evaluation system’s reliance on comparative
assessments. Those who may look at
[Plaintiff’s] record now or in the future
would be misled as to his performance during
that period and as to his potential. This is
not fair to the Marine or the Marine Corps,
which relies on the performance evaluation
system to make a myriad of personnel
decisions. [Plaintiff] has a right to an
accurate evaluation. The marking should be
changed.
AR at 482.
-8-
On September 2, 2005, the Secretary, through BCNR, denied
Plaintiff’s request to amend the Scovel Report and to convene an
SSB on those grounds. AR at 651-52. On February 23, 2006, the
Secretary denied Plaintiff’s SSB reconsideration request. AR Vol.
I at 2-3 (certified May 17, 2006).
Plaintiff filed an Amended Complaint on May 11, 2006 [Dkt.
No. 34]. On June 21, 2006, Defendants filed an Answer to the
Amended Complaint [Dkt. No. 38]. On July 25, 2006, Defendants filed
a Motion for Summary Judgment. On August 25, 2006, Plaintiff filed
a Cross Motion for Summary Judgment as well as a Memorandum in
Opposition to Defendants’ Motion for Summary Judgment [Dkt. No.
45]. On October 20, 2006, Defendants filed an Opposition to
Plaintiff’s Cross Motion for Summary Judgment and Reply in Support
of Defendants’ Motion for Summary Judgment [Dkt. No. 49]. On
November 13, 2006, Plaintiff filed a Reply to Defendants’
Opposition to Plaintiff’s Motion for Summary Judgment [Dkt. No.
51].
II. Standard of Review
Judicial review in this case is based upon the APA and 10
U.S.C. § 628, which provides federal courts with jurisdiction to
review military agency actions relating to SSBs. Both statutes
accord substantially similar levels of deference to military
administrative actions. See Homer v. Roche, 226 F. Supp. 2d 222,
-9-
225 (D.D.C. 2002) (holding that “the standard adopted by § 628(g)
largely echoes that found in the APA”).
In reviewing military agency action, a court may set aside a
decision if it is arbitrary or capricious, not based on substantial
evidence, the result of material errors of fact or a material
administrative error, or is otherwise contrary to the law. 5 U.S.C.
§ 706(2); 10 U.S.C. § 628(g)(1)(A). In conducting its review, the
court employs an “unusually deferential application of the
‘arbitrary and capricious’ standard . . . .” Kreis v. Sec’y of Air
Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). As our Court of
Appeals has held “[p]erhaps only the most egregious decisions may
be prevented under such a deferential standard of review.” Id. at
1515.
To survive judicial review, the military agency’s decision
“must give a reason that a court can measure, albeit with all due
deference, against the ‘arbitrary or capricious’ standard of the
APA.” Id. at 1514-15. The court will set aside an agency decision
“only when the record is so compelling that no reasonable fact
finder could fail to find to the contrary” Lakeland Bus Lines,
Inc., v. NLRB, 347 F.3d 955, 961 (D.C. Cir. 2003).
Plaintiff has the burden of proving by ”’cogent and clearly
convincing evidence’ that the [military administrative] decision
was the result of a material legal error or injustice.” Cochrane v.
-10-
Wynne, 541 F. Supp. 2d 267, 271 (D.D.C. 2008) (citation and
internal quotations omitted). To satisfy this burden, plaintiff
must “overcome the strong, but rebuttable, presumption that
administrators of the military, like other public officers,
discharge their duties correctly, lawfully, and in good faith.”
Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997)(citation and
internal quotations omitted).
When review is based upon the administrative record,
“[s]ummary judgment is an appropriate procedure for resolving a
challenge to a federal agency’s administrative decision . . . .”
Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995).
The court must limit its review to the administrative record, which
“includes all materials compiled by the agency that were before the
agency at the time the decision was made.” James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)(citations and internal
quotations omitted).
III. Analysis
Plaintiff seeks judicial review of the following
administrative actions: (1) the Secretary’s September 2, 2005
denial of Plaintiff’s request to correct the Scovel Report and
accompanying request to convene an SSB, Am. Compl., Count 3-4; and
(2) the Secretary’s denial of Plaintiff’s SSB reconsideration
request based on the Davidson Report error, id. at Counts 1-2.
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A. The Secretary Did Not Act Arbitrarily or Capriciously in
Denying Plaintiff’s Request to Amend the Scovel Report
and to Convene an SSB
1. The Secretary’s Decision Denying Amendment of the
Scovel Report
The Secretary denied Plaintiff’s request to correct the Scovel
Report on the grounds that the Report “was both administratively
correct and procedurally complete as written and filed.” AR at 465,
651. In seeking judicial review of this conclusion, Plaintiff
argues that the Secretary’s decision was: (1) contrary to law; and
(2) not based on substantial evidence.8 Pl.’s Mot. 46-51. 9
8
Plaintiff also raises a number of additional challenges to the
Secretary’s decision.
First, Plaintiff argues that because the Davidson and Scovel
Reports “are similar in that the marks unfairly color Plaintiff’s
performance” the Secretary should have accorded them the same
treatment and amended the Scovel Report. Pl.’s Mot. 51. However, as
Plaintiff himself points out, the basis for the alleged error in
the Davidson Report (Davidson’s falsification of Plaintiff’s
ranking) was different from the reason Plaintiff presented for
amending the Scovel Report (a change in Scovel’s grading
philosophy). Accordingly, Plaintiff is incorrect in characterizing
the Reports as similar and deserving of the same treatment.
Second, Plaintiff argues that because the Secretary has
allowed Plaintiff to continue submitting Col. Scovel’s retraction
letter to future selection boards, the Secretary has admitted that
the Scovel Report is unfair and inaccurate. Id. at 53. Plaintiff
has no basis for reaching this conclusion as the Secretary’s
decision to permit Plaintiff to continue presenting Scovel’s letter
is in accordance with Navy regulations and established BCNR
practice. Mueller v. Winter, 485 F.3d 1191, 1199 (D.C. Cir. 2007).
Morever, “[w]here the BCNR has no more evidence than it had here to
determine whether a reviewer changed his report out of sympathy for
a disappointed officer, there is nothing arbitrary about retaining
both [documents] and permitting future promotion boards to give
(continued...)
-12-
The Court reviews Plaintiff’s challenge to the Secretary’s decision
under the APA.10 Musengo v. White, 286 F.3d 535, 538 (D.C. Cir.
2002).
8
(...continued)
each [] the credit they believe it deserves.” Id. at 1199.
Third, Plaintiff argues that the BCNR was prohibited from
affirming PERB’s recommended denial of Plaintiff’s request because
PERB applies a higher burden of proof than BCNR. Pl.’s Mot. 54.
Plaintiff is correct that a different burden of proof is required
by the two boards. See MCO 1610.11C, ¶ 10a (PERB may recommend
amending an officer’s record where the “applicant presents an
amount of relevant evidence tending to prove that the allegations
contained in the application are more likely true than not”); 32
C.F.R. § 723.3(e)(2) (in deciding record change requests BCNR
“relies on a presumption of regularity to support the official
actions of public officers and, in the absence of substantial
evidence to the contrary, will presume that they have properly
discharged their official duties”). Nevertheless, Plaintiff has
cited no statute, regulation, or other authority establishing that
the BCNR is prohibited from affirming a PERB decision on a record
change application. In the absence of authority, this Court should
not intrude upon the regulatory framework that Congress and the
military have established for review of military personnel matters.
Kreis, 866 F.2d at 1511.
9
Pursuant to 10 U.S.C. § 1552(a)(1), the Secretary “may correct any
military record of the Secretary’s department when the Secretary
considers it necessary to correct an error or remove an injustice.”
In bringing a request under Section 1552, the burden of proof rests
with petitioner. MCO 1610.11C, ¶ 10a; 32 C.F.R. § 723.3(e)(2).
10
In order to survive judicial review, the Secretary’s decision
must include “the reasons for the determination that relief should
not be granted, including the applicant’s claims for
constitutional, statutory, and/or regulatory violations that were
rejected, together with all the essential facts upon which the
denial is based . . . .” 32 C.F.R. § 723.3(e)(4).
-13-
a. The Secretary’s Decision Was Not Contrary to
Law
MCO 1610.7E provides the legal basis for the Secretary’s
conclusion that the Scovel Report was “administratively correct and
procedurally complete” when written. In this regard, the Secretary
concurred in PERB’s determination that “[n]othing in MCO 1610.7E
provides reporting officials with the advantage of hindsight,
combined with subsequent years of service and observations, to
change previously assigned evaluative grades or comparative
assessments.” AR at 465.
Plaintiff claims that this holding is contrary to law because
another section of MCO 1610.7E, Paragraph 8002.1(e), requires
amending the Scovel Report, Pl.’s Mot. 48-51:
Reporting senior[] [officers] [“RS”] must
accurately and fairly assess the performance
of their subordinates; RSs who fail to do so
will unwittingly and unfairly discriminate
against either earlier reports or subsequent
reports.
....
(2) Reporting seniors who attempt to
change their rating philosophy may either
positively or negatively affect the
relative value of reports for [the
officers] they previously rated.
(a) When the RS changes his or her
grading philosophy and grades
higher, he or she diminishes the
value of all preceding reports ever
written.
-14-
MCO 1610.7E, ¶ 8002.1(e)(2)(a). Plaintiff argues that the Scovel
Report’s alleged error violates Paragraph 8002.1 (e)(2)(a) and that
the Secretary, therefore, acted contrary to law by failing to amend
the Report. Pl.’s Mot. 50. However, as Defendants correctly argue,
the clear and plain language of Paragraph 8002.1(e) merely cautions
officers to maintain consistent grading philosophies and does not
suggest that a change in grading philosophy serves as a basis for
amending a performance evaluation.
Moreover, the Secretary’s interpretation of MCO 1610.7E is
consistent with Marine Corps regulations governing requests to
correct performance evaluations,11 as well as the military’s general
position that “post-hoc reevaluations by reporting seniors are
insufficient to overcome the presumption of regularity, based on
the understanding that raters may attempt to retract otherwise
11
Under Paragraph 11(b) of MCO 1610.11C,
Appeals supported by statements from reporting
officials who in retrospect, attempt to refute
specific deficiencies cited by them in the
contested report(s) are not usually approved.
Specific evidence of error in judgment,
misinterpretation of facts and circumstances,
and so on, must be provided. Statements that
merely allude to changed perspectives
following some unfavorable event (non
selection for promotion, regular appointment,
professional schooling, etc.) that may be
attributable to the report(s) are of little
value.
-15-
accurate assessments when requested to do so by their disappointed
officers.” Mueller, 485 F.3d at 1198.
For these reasons, Plaintiff has failed to demonstrate that
the Secretary’s decision is contrary to law.
b. The Secretary’s Decision Is Based on
Substantial Evidence
In challenging the Secretary’s decision on the grounds of
substantial evidence, Plaintiff argues that the Secretary’s denial
was based on the erroneous belief that Col. Scovel’s perception of
Plaintiff had changed, when in fact it was his grading philosophy
that had changed. Pl.’s Mot. 47. However, Plaintiff’s argument,
which is based on PERB’s recommendation to BCNR, is not supported
by the recommendation’s text, which clearly states that there had
been a change in Colonel Scovel’s grading philosophy. AR at 466.
Plaintiff does not present any other arguments suggesting that
the Secretary’s decision is not supported by substantial evidence,
which is defined as “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Smith v.
Dalton, 927 F. Supp. 1, 5 (D.D.C. 1996) (quoting Cruse v. Bowen,
867 F.2d 1183, 1184 (8th Cir. 1989)). In fact, a review of the
record demonstrates that PERB’s recommended denial of Plaintiff’s
request as well as BCNR’s adoption of that recommendation were
-16-
based on substantial evidence.12
In sum, Plaintiff has failed to demonstrate that the
Secretary’s decision is not supported by substantial evidence in
the record.
2. The Secretary’s Decision on Plaintiff’s SSB Request
In declining to convene an SSB based upon the Scovel Report,
the Secretary noted that since “there was no defect in the Scovel
Report, there was no basis for granting an SSB on those grounds. AR
at 652. This conclusion is consistent with 10 U.S.C. § 628, which
12
In recommending denial of Plaintiff’s record change request, PERB
cited to several key pieces of evidence:
[S]ince reviewing the challenged fitness
report in 1999, the Reviewing Officer (Colonel
Scovel) has changed the manner in how he now
grades/rates fitness reports. It is,
therefore, the petitioner’s contention that a
mark in Block 7 of the Comparative Assessment
. . . more appropriately reflects Colonel
Scovel’s comment that he was in the ‘top 5% of
majors’ on whom he wrote. To support his
appeal the petitioner furnishes a copy of
Colonel Scovel’s letter to the President of
the [FY 2005 Selection Board.
AR at 465.
In affirming PERB’s recommendation, the BCNR also noted the
evidence it reviewed prior to reaching its determination: (1)
Plaintiff’s original record change application, all documents
submitted in support thereof, and Plaintiff’s naval record; (2)
applicable statutes, regulations and policies; and (3) Plaintiff’s
rebuttal letters, dated March 22, 2005 and August 26, 2005, to the
PERB recommendation, as well as attachments thereto. AR at 651.
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allows the Secretary to convene an SSB only where there has been
“material unfairness:”
If the Secretary of the military department
concerned determines, in the case of a person
who was considered for selection for promotion
by a promotion board but was not selected,
that there was material unfairness with
respect to that person, the Secretary may
convene a special selection board under this
subsection to determine whether that person
. . . should be recommended for promotion. In
order to determine that there was material
unfairness, the Secretary must determine that
–
(A) the action of the promotion board
that considered the person was contrary to law
in a matter material to the decision of the
board or involved material error or material
administrative error; or
(B) the board did not have before it for
its consideration material information.
Id. at § 628(b)(1). Because the Secretary did not act arbitrarily
or capriciously in concluding that there was no error in the Scovel
Report, the Court concludes that the Secretary’s decision not to
convene an SSB was also proper.
For the foregoing reasons, the Court concludes that Plaintiff
has failed to show that the Secretary acted arbitrarily or
capriciously in denying Plaintiff’s request to amend the Scovel
Report and convene an SSB.
-18-
B. The Secretary Did Not Act Arbitrarily or Capriciously in
Denying Plaintiff’s Reconsideration Request Based on the
Davidson Report
Plaintiff raises two challenges to the Secretary’s denial of
Plaintiff’s SSB reconsideration request. First, Plaintiff argues
that the Secretary’s February 23, 2006 decision should not be
considered. Second, Plaintiff argues that the denial of his SSB
reconsideration request was arbitrary and capricious and not based
on substantial evidence. The Court will consider each of these
arguments in turn.
1. The Secretary’s February 23, 2006 Decision Is a
Final Agency Decision and Therefore Is Properly
Considered
Plaintiff presents two arguments as to why the February 23,
2006 decision should not be considered by the Court. First,
Plaintiff claims there was a final agency decision on his SSB
reconsideration request on August 9, 2005 when Plaintiff’s request
was “deemed denied” pursuant to 10 U.S.C § 628(g).13 Pl.’s Mot. 3.
Second, Plaintiff argues that the February 23, 2006 decision was
rendered solely for purposes of this litigation and should not be
considered by the Court. Id. at 4-7.
13
Although Plaintiff argues against the Court’s consideration of the
February 23, 2006 decision, in his Amended Complaint, he presents
the decision as an alternate ground for judicial review should the
Court reject his claim that the SSB reconsideration request was
“deemed denied.” Am. Compl., Count 1-2.
-19-
With regard to his first argument, Plaintiff is incorrect that
10 U.S.C § 628(g) applies to SSB reconsideration requests. Under
that statutory provision, “[i]f, six months after receiving a
complete application for consideration by a special selection board
under this section in any case, the Secretary concerned has not
convened such a board and has not denied consideration by such a
board in that case, the Secretary shall be deemed for the purpose
of this subsection to have denied the consideration of the case by
such a board.” 10 U.S.C. § 628(g)(3)(A). The plain language of the
statute makes clear that the six-month limitation period applies to
initial requests to convene an SSB and nowhere suggests that that
limitations period also extends to requests to reconsider previous
SSB denials.
With regard to his second argument, Plaintiff has failed to
show that the February 23, 2006 decision is an impermissible post-
hoc rationalization issued merely for the purposes of litigation.
As the case law makes clear, the rule barring consideration of
post-hoc agency rationalizations applies “where an agency has
provided a particular justification for a determination at the time
the determination is made, but provides a different justification
for the same determination when it is later reviewed by another
body.” Independence Mining Co. v. Babbitt, 105 F.3d 502, 511 (9th
Cir. 1997).
-20-
Plaintiff argues that the February 23, 2006 decision
constitutes a post-hoc rationalization because it issued several
months after Plaintiff originally sought review in this Court and
because it denied Plaintiff’s reconsideration request on grounds
not contained in the Secretary’s April 16, 2004 decision. Pl.’s
Mot. 4-7, 22. While Plaintiff is correct about the timing of the
Secretary’s February 23, 2006 decision, Plaintiff is incorrect that
the grounds for dismissal contained in that decision constitute a
post-hoc rationalization. The February 23, 2006 decision presented
two rationales for denying Plaintiff’s SSB reconsideration request.
First, it affirmed the Secretary’s April 16, 2004 decision denying
Plaintiff’s original SSB request because he had failed to exercise
reasonable diligence. AR Vol. I at 2-3. Second, it concluded that
denial was also appropriate because the Davidson Report did not
amount to material unfairness. Id. Plaintiff argues that this
ruling on “material unfairness” was impermissible as a post-hoc
rationalization. However, the “material unfairness” rationale was
only a supplemental ground for denial, not a “different
justification for the same determination when it is later reviewed
by another body.”
For these reasons, the Court concludes that the February 23,
2006 decision is the final agency decision on Plaintiff’s SSB
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reconsideration request and is properly considered by the Court.
2. The Secretary’s Decision to Deny Plaintiff’s SSB
Reconsideration Request Was Neither Arbitrary Nor
Capricious
Plaintiff argues that the Secretary acted arbitrarily and
capriciously in concluding that the Davidson Report error did not
constitute material unfairness and that Plaintiff failed to
exercise reasonable diligence. Pl.’s Mot. 20-44. The Court reviews
Plaintiff’s challenge under 10 U.S.C. § 628(b).14
a. The Secretary’s Decision on Material
Unfairness
On the issue of material unfairness, the Secretary’s February
23, 2006 decision concluded that:
[T]here is no evidence that, at the time the
report was written, the reporting senior
failed to consider all issues pertaining to
the three first lieutenants he was evaluating.
To the contrary, the fitness report was
accurate, and based on the reporting senior’s
opinion at the time. Subsequent regret over
the consequence of a ranking decision does not
14
Plaintiff argues that the Court’s review of the February 23, 2006
decision arises under the APA, rather than 10 U.S.C. § 628. Pl.’s
Mot. 7. However, Section 628 states that, “[a] court of the United
States may review a determination by the Secretary of a military
department . . . not to convene a special selection board in the
case of any person.” As is clear, the Secretary’s February 23, 2006
decision affirming the Navy’s denial of Plaintiff’s original SSB
request constitutes “a determination by the Secretary of a military
department . . . not to convene a special selection board . . . .”
Accordingly, 10 U.S.C. § 628 governs the Court’s review of the
February 23, 2006 decision.
-22-
constitute material error and reconsideration
after the fact, motivated by an individual
failing of selection, does not form the basis
for granting a Special Selection Board.
Furthermore, the fitness report covered
less than four months of, at the time of the
board, more than 15 years of active duty. With
this same report unchanged, Major McGrady was
promoted to captain and major.
AR Vol. I at 2-3.
Plaintiff raises several challenges to the Secretary’s finding
of no material unfairness. First, Plaintiff argues that the
Secretary’s conclusion contradicts the BCNR’s August 26, 2003
decision to correct the Davidson Report. Pl.’s Mot. 22-24. Second,
Plaintiff argues that the Secretary’s April 16, 2004 decision
already conceded the issue of material unfairness. Id. at 21-22.
Third, Plaintiff argues that the Secretary’s February 23, 2006
decision is not substantially supported by the evidence. Id. at 24-
29.
With regard to the BCNR’s August 26, 2003 decision, the record
shows that the BCNR made no ruling on material unfairness, nor did
it in any other way conclude that the Davidson Report was
“material” as defined under 10 U.S.C. § 628.15 With regard to the
15
The BCNR is not required to find that an error is material in
order to correct a military record. See 10 U.S.C. § 1552(a)(the
BCNR “may correct any military record of the Secretary’s department
(continued...)
-23-
Secretary’s April 16, 2004 decision, as previously mentioned, that
decision denied Plaintiff’s request for an SSB based on his lack of
reasonable diligence. Although the decision did make findings of
fact that could have been used to reach a conclusion on material
unfairness, the Secretary plainly chose not to do so.16 He did not,
therefore, “concede” the issue of material unfairness.
With regard to the issue of substantial evidence, the
Secretary based his conclusion on the following key pieces of
evidence: (1) the BCNR’s August 26, 2003 decision17 correcting the
Davidson Report to reflect a ranking of 1 out of 3 and ordering
15
(...continued)
when the Secretary considers is necessary to correct an error or
remove an injustice”).
16
Although the Secretary’s April 16, 2004 decision does suggest that
the error in the Davidson Report “may have been a competitive
concern,” the Secretary did not ultimately reach a conclusion on
this issue. See AR Vol. I at 71 (“The presence of the fitness
report for the period 1 August 1990 to 26 November 1990 in Major
McGrady’s record may have been a competitive concern, however,
Major McGrady reasonably should have known the nature of the
ranking and should have taken appropriate steps to highlight or
correct the fitness report prior to the [FY 2004 Selection Board]
convening.”).
17
While Plaintiff suggests that the Secretary did not review the
BCNR’s August 26, 2003 decision, it was in fact plainly referenced
in the Secretary’s February 23, 2006 decision. Moreover, the BCNR’s
decision was also cited in the Secretary’s April 16, 2004 decision
and was therefore part of the record accompanying Plaintiff’s SSB
reconsideration request. Pl.’s Reply 14.
-24-
other relief;18 (2) the fact that, at the time of the FY 2004
Selection Board, the Davidson’s Report covered less than four
months of Plaintiff’s fifteen years of active duty; and (3) the
fact that, even before the Davidson Report had been corrected,
18
In relevant part, the BCNR recommended that the following remedial
action be taken on plaintiff’s record change request:
(a) That Petitioner’s naval record be
corrected by modifying the fitness report for
1 August to 26 November 1990, signed by
Captain D.W. Davidson and dated 10 December
1990, by changing the item 15 peer ranking
from “3" of “3" to “1" of “3."
(b) That Petitioner’s naval record be
corrected further so that he will be
considered by the earliest possible selection
board convened to consider officers of his
category for promotion to lieutenant colonel
as an officer who has not failed selection for
promotion to that grade.
(c) That any material or entries inconsistent
with or relating to the Board’s recommendation
be corrected, removed or completely expunged
from Petitioner’s record and that no such
entries or material be added to the record in
the future.
(d) That any material directed to be removed
from Petitioner’s naval record be returned to
this Board, together with a copy of this
Report of Proceedings, for retention in a
confidential file maintained for such purpose,
with no cross reference being made a part of
Petitioner’s naval record.
AR Vol. I at 31.
-25-
Plaintiff had received a promotion from captain to major. AR Vol.
I at 2-3.19
In deciding whether the Secretary’s decision is based on
substantial evidence, the Court must not base its finding “‘merely
on the basis of evidence which in and of itself justified [the
Board’s decision] without taking into account the contradictory
evidence or evidence from which conflicting inferences could be
drawn.’” Lakeland, 347 F.3d at 962 (quoting Universal Camera Corp.,
v NLRB, 340 U.S. 474, 488, 71 S. Ct. 456 (1951)). While Plaintiff’s
reconsideration request does present additional arguments in favor
of convening an SSB,20 the Court cannot conclude that this evidence
19
In the February 23, 2006 decision, the Secretary also noted that
the FY 2005 and 2006 Selection Boards denied Plaintiff’s promotion
application, even though he was “in zone” and the corrected
Davidson Report had been included in his file. AR Vol. I at 2.
Plaintiff argues that the Secretary should not have considered
these facts as Plaintiff’s consideration by the FY 2005 and 2006
Selection Boards is irrelevant to determining whether Plaintiff
suffered material unfairness before the FY 2004 Selection Board.
Pl.’s Reply 15-16. While Plaintiff’s argument is not without merit,
the Secretary’s decision on material unfairness does not rely on
Plaintiff’s consideration by the FY 2005 and 2006 Selection Boards.
20
Plaintiff raises the following evidence and arguments in support
of his claim that an SSB was warranted: (1) the fact that the
Davidson Report was a transfer report, and that “being ranked last
[on such a report] sends a strong negative signal to the promotion
board;” (2) evidence from two other officers who had similar career
patterns as Plaintiff that allegedly demonstrates that the
selection boards “place[] dispositive weight on competitive
rankings;” (3) an advisory report from a career counselor
(continued...)
-26-
is so compelling that the Secretary “could [not] have fairly and
reasonably found the facts that it did,” Morall v. DEA, 412 F.3d
165, 176-77 (D.C. Cir. 2005).
b. The Secretary’s Decision on Reasonable Diligence
On the issue of reasonable diligence, the Secretary’s February
23, 2006 decision concluded that:
Major McGrady did not demonstrate the
[reasonable] diligence required. Secretary of
the Navy regulations issued pursuant to title
10, U.S. Code section 628(j) state that a
selection board will not be convened to
consider any officer who, through the exercise
of reasonable diligence, might have discovered
and corrected the errors or omission in the
record prior to the convening of the Fiscal
Year 2004 board; during those twelve years, he
was aware of his 3 of 3 ranking, but took no
action to change, or even inquire into the
circumstances surrounding, the ranking.
AR Vol. I at 3.
In accordance with 10 U.S.C. § 628 as well as applicable
military regulations, the Secretary’s authority to convene an SSB
for material unfairness depends upon petitioner’s exercise of
reasonable diligence in discovering any material errors or
mistakes. See Department of Defense Instruction 1320.11 (directing
20
(...continued)
suggesting that “a change in the ranking would ‘improve’”
Plaintiff’s record; and (4) evidence that promotion opportunities
decrease as an officer becomes more senior. Pl.’s Mot. 24-28.
-27-
that an SSB “shall not . . . consider any person who may, by
maintaining reasonably careful records, have discovered and taken
steps to correct that error or omission on which the original board
based its decision against promotion”).
In challenging the Secretary’s decision on this issue,
Plaintiff raises several arguments. First, Plaintiff argues that
the Secretary’s decision on reasonable diligence contradicts the
BCNR’s August 26, 2003 decision that Plaintiff’s record change
request was timely. Pl.’s Mot. 39. Second, Plaintiff argues that
the Secretary’s decision ignores substantial evidence that
Plaintiff had no reasonable basis to question the accuracy of the
Davidson Report prior to 2003. Id. at 32-43. Third, Plaintiff
argues that the Secretary’s decision fails to identify “objective
factors” used to identify reasonable diligence. Id. at 29-32.
With regard to the BCNR’s August 26, 2003 decision, Plaintiff
has failed to show that the BCNR’s ruling on timeliness conflicts
with the Secretary’s ruling on reasonable diligence. In its August
26, 2003 decision, the BCNR held that Plaintiff’s petition to amend
the Davidson Report was timely even though it was filed some
thirteen years after the Davidson Report was issued. Pl.’s Mot.
-28-
39.21 Plaintiff argues that the by permitting Plaintiff to proceed
with his record correction request the BCNR essentially concluded
that “there was no reasonable basis for contesting the [Davidson
Report] until discovery of the error [in] 2003.” Pl’s Mot. 40.
However, BCNR’s conclusion that the petition to correct the error
in the Report was timely does not amount to a finding that
Plaintiff was reasonably diligent in actually discovering that
error.
With regard to substantial evidence, the Secretary’s decision
was based on the following facts: (1) during the twelve years
between the issuance of the Davidson Report and the FY 2004
Selection Board Plaintiff was aware of his “3 of 3” ranking; and
(2) Plaintiff did not question the ranking’s accuracy until after
he was denied promotion by the FY 2004 Selection Board.22 AR Vol.
I at 3, 71. Although Plaintiff did present evidence suggesting he
had no reason to believe the Davidson Report was incorrect until
21
Under 10 U.S.C. § 1552(b), the Secretary is authorized to correct
a military record only if “the claimant . . . files a request for
the correction within three years after he discovers the error or
injustice. . . . [or] if it [is] in the interest of justice.”
22
In the April 16, 2004 decision, the Secretary also noted that
“correction of an error in an officer’s record, after the officer
incurs a failure of selection by a promotion board, will not
necessarily be the basis for convening a special selection board.”
AR Vol. 1 at 71.
-29-
2003, this evidence is not compelling enough to outweigh the
Secretary’s finding that Plaintiff should have, but did not
question the Davidson Report for some thirteen years and did so
only after he believed his promotion opportunities had been
adversely affected by the Report. See Mueller, 485 F.3d at 1200(holding that Navy’s denial of petitioner’s SSB request was
reasonable even though there may have also been substantial
evidence supporting petitioner’s claim); Morall, 412 F.3d at 176(“In applying the substantial evidence test, we have recognized
that an agency decision may be supported by substantial evidence
even though a plausible alternative interpretation of the evidence
would support a contrary view.”)(citation and internal quotations
omitted).
For similar reasons, the Secretary’s decision demonstrates the
“objective factors” used for determining whether Plaintiff
exercised reasonable diligence.23 The Marine Corps Promotion Manual
23
Plaintiff argues that the Secretary has failed to show that
Plaintiff did not act with reasonable diligence because he complied
with the applicable Marine Corps regulation for ensuring the
accuracy of his records prior to appearing before the FY 2004
Selection Board. Pl.’s Mot. 29-31. There is no dispute that
Plaintiff was in compliance with this regulation. Defendant’s Reply
to Plaintiff’s Statement of Material Facts on Which There is No
Genuine Issue in Support of His Motion for Summary Judgment ¶ 57
(Oct. 20, 2006) [Dkt. No. 49-1]. However, as reflected in the
Marine Corps’ Judge Advocate Division’s legal opinion(“Judge
(continued...)
-30-
defines “reasonable diligence” as the “fair, proper, and due degree
of care and activity, measured with reference to the particular
circumstance; such diligence care and attention as might be
expected from a man/woman of ordinary prudence and activity.” MCO
P1400.31B ¶ 5002.2(c), Pl. Ex. 7 (Aug. 25, 2006) [Dkt. No. 44-8].
In assessing whether the Secretary has provided a sufficient basis
for concluding that Plaintiff failed to meet this standard, the
Court must determine whether the Secretary has “give[n] a reason
that the Court can measure, albeit with due deference.” Kreis, 866
F.2d at 1514-15. Where the “agency’s path may be reasonably
discerned,” a “reviewing court will uphold a decision of less than
ideal clarity . . . .” Frizelle, 111 F.3d at 176 (citation and
internal quotations omitted). Here, the Secretary’s decision
clearly states that Plaintiff’s request failed to meet the
regulatory requirement of reasonable diligence and provides facts
to support its conclusion.24
23
(...continued)
Advocate’s Opinion”) on Plaintiff’s original SSB request,
compliance with this regulation alone does not necessarily satisfy
the requirement of reasonable diligence. AR at 28.
24
Plaintiff argues that the Secretary’s decision that Plaintiff
failed to exercise reasonable diligence was based on the Judge
Advocate’s Opinion that Plaintiff had failed to consult with a
career counselor before the FY 2004 Selection Board convened. Pl.’s
Mot. 31. While it is true that the Judge Advocate’s Opinion made
(continued...)
-31-
For the foregoing reasons, the Court concludes that the
Secretary did not act arbitrarily or capriciously in denying
Plaintiff’s SSB reconsideration request based on the Davidson
Report.
IV. Conclusion
For all the reasons stated herein, Defendants’ Motion for
Summary Judgment is granted in full and Plaintiff’s Cross Motion
for Summary Judgment is denied in full. An Order will accompany
this Memorandum Opinion.
/s/
September 16, 2011 Gladys Kessler
United States District Judge
24
(...continued)
this finding, the Secretary’s decision is no way references or
relies on this conclusion.
-32-