DocketNumber: Case No. 17–cv–1076 (APM)
Citation Numbers: 285 F. Supp. 3d 210
Judges: Mehta
Filed Date: 1/10/2018
Status: Precedential
Modified Date: 7/25/2022
I. INTRODUCTION
Plaintiff Evan E. Cooper, a Navy commander who retired after accepting a non-judicial disposition of misconduct, brings this action under the Administrative Procedure Act seeking review of a Board for Correction of Naval Records ("Board") decision that denied him changes to his naval records. As relevant here, Plaintiff argued that changes were warranted because: (1) the informal misconduct proceeding that led to his retirement was invalid because Plaintiff did not receive meaningful advice of counsel before agreeing to that process; and (2) the Navy breached its promise to recommend to the Secretary of the Navy the highest possible retirement pay grade that Plaintiff could receive. Plaintiff asked the Board to remove records relating to the misconduct proceeding and to correct his records to reflect retirement at the higher pay grade. The Board rejected those requests.
The court concludes that the Board acted arbitrarily and capriciously by failing to address the substance of Plaintiff's first argument, but finds no merit in Plaintiff's second ground for relief. Accordingly, the court enters judgment in part for Defendant and remands to the Board for further proceedings consistent with this Memorandum Opinion.
II. BACKGROUND
A. Events Leading to Plaintiff's Retirement
Plaintiff Cooper is a retired commander in the United States Navy Reserve. Am. Compl., ECF No. 2, ¶¶ 1, 3. The events leading to Plaintiff's retirement are at the heart of this action.
Following an accusation that Plaintiff had submitted fraudulent travel reimbursement claims, the Navy initiated a Non-Judicial Punishment ("NJP") proceeding against Plaintiff. See Admin. R. [hereinafter AR], at 6-7, 20-23, 49-52, 95.
*212An NJP is an informal, administrative process that an accused service member may choose in lieu of trial by court-martial to defend against allegations of wrongdoing. See id. at 104-06. Critically, by choosing the NJP route, the service member forgoes constitutional rights available during the criminal process. Cf. Middendorf v. Henry ,
Despite the claimed lack of meaningful legal advice, Plaintiff selected the NJP process and pleaded not guilty. Id. at 9, 96. He was found guilty at the NJP proceeding on May 28, 2008, and was given a Punitive Letter of Reprimand. Id. at 49-52; see also id. at 6. After the NJP hearing, Plaintiff was provided with a document titled "Accused's Notification and Election of Rights"-a form by which he could waive his right to trial by court-marital-which stated that an accused "may obtain the advice of a lawyer prior to" deciding whether to accept NJP. Id. at 72-73, 96, 105. The form contained a question asking Plaintiff whether he wished to talk to a military lawyer or a civilian lawyer, or whether he "voluntarily[,] knowingly, and intelligently" waived his right to talk to counsel before proceeding. Id. at 107. Plaintiff did not complete this section of this form. Id. at 95-96, 107.
The Punitive Letter of Reprimand that Plaintiff received precipitated his retirement. In a letter dated January 22, 2010, the Navy ordered Plaintiff to show cause before a Navy Board of Inquiry why, in light of the misconduct finding, he should not be discharged from service. Id. at 3-4, 96. The letter warned Plaintiff that the show cause proceeding could result in his separation from the Navy and that his retirement pay grade could be lowered to the "last pay grade in which you served satisfactorily," i.e., before his misconduct. Id. at 3. For Plaintiff, that meant risking possible separation from the Navy at an O-3 pay grade. Even though Plaintiff held the pay rank of O-5 at the time the show cause order was issued, because his misconduct occurred while he was at the O-4 level, the last pay grade at which he "served satisfactorily" was O-3. See id. at 3, 34.
The Punitive Letter of Reprimand, however, offered Plaintiff a way to avoid going before the Naval Board of Inquiry for a show cause proceeding. As explained in the January 22, 2010 letter, Plaintiff could opt to voluntarily retire in lieu of the proceeding, in which case his request that would be processed in accordance with a Navy regulation on retirement grade recommendations. Id. at 4, 70. Before making a decision, Plaintiff spoke with a different JAG officer, Andrew House, who explained the Board of Inquiry process and "negotiated on [Plaintiff's] behalf with the Show Cause Authority" for an agreement where *213the Show Cause Authority would "recommend to the Secretary that [Plaintiff] retire at the rank of O-5" if Plaintiff retired in lieu of the Board of Inquiry. Id. at 96-97. Plaintiff understood, however, that a final decision as to his retirement level rested solely with the Secretary of the Navy and that the Secretary was not obligated to accept the negotiated O-5 retirement-grade recommendation. Id. at 97.
Plaintiff requested retirement on February 19, 2010. Id. at 1, 5. In a letter formally making the request, Plaintiff stated "[his] understanding that Commander, Navy Personnel Command will recommend my retirement at paygrade O-5 (Commander)," yet acknowledged that the Secretary could retire him at a "lesser paygrade" than his current level. Id. at 5. At some later point, the Assistant Commander, Navy Personnel Command for Career Progression, recommended to the Chief of Naval Personnel that Plaintiff be retired at the O-5 pay grade. Id. at 511-12. The Deputy Chief of Naval Operations, however, countermanded the Assistant Commander's request and instead, on January 10, 2011, recommended to the Secretary that Plaintiff's retirement be accepted at the rank of O-3. Id. at 1-2. The Secretary accepted the lower recommendation, resulting in Plaintiff's retirement at the O-3 pay level. See id. at 2.
B. Plaintiff's Efforts to Correct His Naval Records
Following the Secretary's decision, Plaintiff, through private counsel, petitioned the Board to revise his personnel file to remove the NJP and to reflect his retirement at the pay grade of O-5. Id. at 65. As relevant to this case, Plaintiff challenged his waiver of his right to trial by court-martial, arguing that because he had not received meaningful advice of counsel before accepting the NJP, his waiver of rights was not "voluntary, knowing, and intelligent." See id. at 73-74. He also challenged his pay grade recommendation. Plaintiff argued that he had agreed to retire voluntarily in exchange for a recommendation to the Secretary of the Navy that he be retired at the O-5 pay grade, but the Navy breached that agreement when "the Deputy Chief of Naval Operations recommended retirement at the grade of O-3." Id. at 69, 71.
On July 16, 2014, the Board denied Plaintiff's request in its entirety. Id. at 38-40. Describing Plaintiff's first basis for relief as asserting that his "waiver of [the] right to demand trial by court martial was invalid because your military lawyer refused to form an attorney-client relationship with you," the Board concluded that the claim had no merit because Plaintiff "[was] not entitled to have a military lawyer represent you at NJP." Id. at 39. The Board further noted that Plaintiff had the opportunity to consult with counsel prior to accepting the NJP, but it said nothing about the limited scope of that consultation. Id. As to the pay grade issue, the Board rejected Plaintiff's argument because he had "agreed that the Secretary of the Navy (SECNAV) could retire you in a lesser pay grade." Id.
On August 11, 2014, Plaintiff sought reconsideration of the Board's decision, asserting that that the Board "may have misapprehended" two of his points. Id. at 41. First, as to the waiver issue, Plaintiff stated that he had "never argued that he was entitled to representation at NJP," as the Board's decision suggested. Id. at 42. Rather, he was arguing that "he was entitled to ... meaningful consultation prior to deciding whether to accept NJP." Id. Citing to the Federal Circuit case Fairchild v. Lehman ,
By letter dated September 24, 2014, the Board denied Plaintiff's request for reconsideration. Id. at 34-36. The Board rejected Plaintiff's contention regarding his retirement at the lower, O-3 pay grade, explaining that "the Commanding Officer of the Navy Personnel Command did not recommend you for retirement in pay grade O-5," but "it was the Chief of Naval Operations that recommended you for retirement in pay grade O-3." Id. at 34. The Board did not address Plaintiff's contention regarding the inadequacy of the legal consultation that he received before he accepted the NJP. See id. at 34-35.
C. Procedural History
Following the Board's denials, on January 20, 2016, Plaintiff filed this action originally in the Court of Federal Claims. See Transfer Notice, ECF No. 1, CFC Docket Sheet, ECF No. 1-1. Both parties moved for judgment on the administrative record in the Court of Federal Claims but, before any decision was rendered, Plaintiff amended his complaint and had the case transferred to this District Court on June 1, 2017. See CFC Docket Sheet at 2, 4; see also Joint Status Report, ECF No. 7, at 1.
Plaintiff challenges the Board's decision under the Administrative Procedure Act ("APA"),
III. LEGAL STANDARD
Federal courts have the authority to review the decision of a military board of correction using "familiar principles of administrative law." Kreis v. Sec'y of the Air Force ,
*215Coburn v. McHugh ,
IV. DISCUSSION
A. Waiver of the Right to Trial
Plaintiff first contends that his waiver of the right to trial by court-martial and his acceptance of the NJP was invalid because he made that election without the meaningful assistance of counsel. Am. Compl. ¶ 13. This is a non-frivolous and potentially dispositive argument. See Frizelle ,
Believing as we do that only a legally trained person can supply the requisite quantum of information necessary for an informed decision, we believe it mandatory that the individual to be disciplined must be told of his right to confer with an independent counsel before he opts for [non-judicial punishment or a summary court-martial].
Despite Plaintiff's clear presentation of the relevant law and the facts of his case, the Board denied his claim in short form, without any analysis that would allow this court to discern the Board's reasoning. See Dickson ,
Defendant attempts to distinguish Fairchild and Booker by asserting that, unlike in Plaintiff's case, the plaintiff in Fairchild received erroneous legal guidance and the plaintiff in Booker received no opportunity to confer with counsel. Def.'s Reply, ECF
*216No. 5-3, at 7. Those arguments in the present posture are unavailing, however, because "[p]ost-hoc rationalizations, developed for litigation" cannot sustain an administrative decision. Ass'n of Civilian Technicians v. Fed. Labor Relations Bd. ,
In sum, the Board's denial of Plaintiff's adequacy-of-counsel claim is arbitrary because the Board did not "provide an explanation that [would] enable the court to evaluate the agency's rationale at the time of [the] decision." Coburn ,
B. Breach of Contract
The court reaches a different conclusion as to Plaintiff's second claim that the Navy breached its deal with him to "recommend to the Secretary retirement at O-5." Am. Compl. ¶ 11; see also AR at 41-42, 68-71. The Board's decisions reveal that it understood and considered Plaintiff's argument, yet found no merit in it. In its initial review, the Board reasoned that Plaintiff knew that the Secretary did not have to accept the pay grade recommendation and had the authority to retire him at the lower, O-3 pay grade. AR at 39. On reconsideration, the Board further noted that it was the Chief of Naval Operations that issued the O-3 recommendation and that it disagreed with Plaintiff's "allegation that the Commanding Officer of the Navy Personnel Command did not recommend you for retirement in pay grade O-5." Id. at 34. By those explanations, the court takes the Board to say that the Navy did not renege on its deal with Plaintiff because, as promised, the Commanding Officer recommended retirement at the O-5 level, and Plaintiff understood that the Secretary ultimately could reject that recommendation. Although not a model of clarity, the Board's reasoning passes muster under the APA's low bar by providing an explanation that facilitates judicial review. See Coburn ,
Moreover, the administrative record belies Plaintiff's claim that he was promised that the Navy would make an O-5 pay grade recommendation to the Secretary. See Am. Compl. ¶ 11. Plaintiff's resignation letter-in which Plaintiff states that he understood that Commander, Navy Personnel Command would make the desired O-5 recommendation-says nothing about to whom that recommendation would be made. AR at 5. The Commanding Officer of the Navy Personnel Command made the promised O-5 recommendation, but it was countermanded by the Chief of Naval Operations, who made an O-3 level recommendation to the Secretary. See id. at 34, 39. There is nothing in the relevant paperwork that bargained away that possibility. To the contrary, the Punitive Letter of Reprimand informed Plaintiff that, if he opted for voluntary retirement, his request would be processed according to a Navy regulation, "[SECNAVIST 1920.6C], paragraph 2." Id. at 4. That regulation makes clear that voluntary retirement requests are routed through a chain of command;
*217the rule specifically states that all retirement requests will be "forwarded with appropriate command endorsements" and that each endorsement "shall include a recommendation to approve or disapprove the request and a statement indicating the highest grade in which the officer served satisfactorily." Def.'s Reply, ECF No. 5-3, at 4. Thus, under SECNAVIST 1920.6C, paragraph 2, it was entirely within the discretion of a commanding officer to reject Plaintiff's retirement at the O-5 pay grade; nothing in the administrative record supports that the Navy bargained away that right, as Plaintiff claims.
To the extent Plaintiff's argument rests on his understanding that the pay grade recommendation made to the Secretary would be at the O-5 level, see Pl.'s Reply, ECF No. 5-4, at 1-2, Plaintiff's subjective belief cannot invalidate his otherwise unambiguous agreement with the Navy. Cf. Armenian Assembly of Am., Inc. v. Cafesjian ,
III. CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss, or, in the Alternative, for Judgment on the Administrative Record is granted in part and denied in part, and Plaintiff's Cross-Motion for Judgment on the Administrative Record is denied. Judgment is entered in favor of Defendant on Plaintiff's claim that the Navy failed to recommend his retirement at the O-5 pay grade. This matter is remanded, however, to the Board for Correction of Naval Records for consideration of Plaintiff's claim that his waiver of his right to trial by court-martial was invalid because he made that decision without meaningful assistance of counsel.
A separate Order accompanies this Memorandum Opinion.
All citations to the Administrative Record are to the page numbers of the Appendix filed in the Court of Federal Claims, which has been refiled on the district court docket. See ECF No. 6 [hereinafter AR].