Annicelli v. Barrett

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LANCE L. ANNICELLI,
Plaintiff,
v. Civil Action No. 1:20-cv-02647 (CJN)
FRANK KENDALL, III,
Secretary of the Air Force,
Defendant.
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Motion for Summary Judgment, ECF
No. 13, and Plaintiff’s Cross-Motion for Summary Judgment, ECF No.14.
Background
Lieutenant Colonel Lance Annicelli joined the Air Force directly out of high school and,
with a few years off for college and a brief stint in the Navy, spent more than twenty-five years
serving this country. AR10–11; AR185–86; AR250; AR1286. His career was largely marked by
excellence—he was repeatedly promoted, received top ratings for his performance, and was hand-
selected for special assignments. See AR1205–40.
In June 2014, Annicelli was given command of the 9th Physiological Support Squadron.
AR186. He soon identified morale and climate issues within the Squadron, which he began to
address by requesting assistance from his superiors and planning new initiatives. See AR40–41;
AR408; AR409; AR410–11; AR422; AR547–48; AR708–99. Fair or unfair, Annicelli’s
leadership drew complaints. In August 2014 his leadership tactics were called “intimidating” and
in October an Organizational Climate Survey reported “concern in leadership conduct and unit
1
morale.” AR111. And in February 2015, there were additional complaints regarding “commander
conduct.” AR111.
On February 12 or 13, 2015, Colonel Ocker—Annicelli’s direct supervisor and “Rater” for
performance reviews—informed him that she was “temporarily” relieving him of command
following an “egregious” allegation of “toxic leadership,” pending an investigation. AR3; AR45–
46. That day, Colonel Lee—Ocker’s supervisor and Annicelli’s “Additional Rater” for
performance reviews—told members of the Squadron that Annicelli was removed from command
due to “toxic leadership.” AR46. The next day, Lee told Annicelli he had decided to permanently
remove him from command notwithstanding the pending investigation. AR65–66; AR620.
Ocker appointed an Investigating Officer to conduct a Commander-Directed Investigation
into “all aspects of allegations regarding toxic leadership by” Annicelli. AR109, AR111. The
investigation was conducted February 12 through 27, 2015. In conducting the investigation, the
Investigating Officer defined “toxic leaders” as those who do the inverse of the conduct and
responsibility expected of commanders as set forth in Air Force Instruction 1–2, Commander’s
Responsibilities, May 8, 2014. AR111–12. The Investigating Officer conducted short interviews
with 29 members of the Squadron and received written statements from those interviewed as well
as a few others, including Annicelli. AR112–13; AR114; AR121–29; AR929–1012. The
Investigating Officer did not inform Annicelli of the definition of “toxic leadership” guiding the
investigation or of any specific allegations of misconduct. AR111. As a result, Annicelli had to
speculate as to which of his command decisions could be under scrutiny and respond as best as he
could. AR121–26.
The Investigating Officer concluded that not all of the problems in the squadron were
attributable to Annicelli and his “overall intent was good.” AR116; AR119. Nonetheless, the
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Investigating Officer found evidence that Annicelli did not exhibit the traits expected of Air Force
commanders, but the inverse of those traits. AR116–18. Relying on the witness statements, the
Investigating Officer concluded that Squadron morale was low and that Annicelli did not treat
Squadron members with dignity, abused his subordinates’ time, was unapproachable, created a
lack of trust, and was feared by members of the Squadron. AR116–18. The Officer found that:
The preponderance of evidence shows [Annicelli] was not trusted, was believed to
be vindictive, and lowered morale through his actions. Further, he demonstrated
he did not respect the time of his personnel. While I believe [Annicelli’s] intent
was to increase mission effectiveness through enforcement of high standards, he
failed to gain and maintain “buy in” from his leadership team, appeared to allow
disagreements and personnel issues to become personal, and ultimately lost the
faith of his squadron; therefore I conclude this allegation of toxic leadership is
SUBSTANTIATED.
AR119 (emphasis original).
The Investigating Officer recommended Annicelli not be reinstated to command. AR120.
The Officer found that although none of Annicelli’s actions were “clearly illegal, immoral, or
unethical . . . his removal from command was warranted because so many members[] believed he
was unapproachable and no longer credible. Over time, those feelings could lead to significant
mission degradation.” AR119.
On March 15, 2015, Annicelli received a “Do Not Promote” recommendation “[d]ue to
lost faith and confidence in his ability to lead.” AR182. On May 5, 2015, Annicelli received an
adverse Officer Performance Report for the period of May 2, 2014 through May 1, 2015. After
listing some of Annicelli’s successes as Commander, the Report stated that he was “Relieved of
Command; CDI [Commander-Directed Investigation] substantiated toxic leadership; unhealthy
org’l climate degraded unit effectiveness.” AR170. The Report also marked that Annicelli “does
not meet standards” for Leadership Skills. AR171. On or around May 21, 2015, Annicelli
submitted a written rebuttal to the Officer Performance Report alleging the investigation was
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“factually and legally flawed” and detailing his positive efforts as Squadron Commander. AR172–
77. Ocker declined to make changes to the Report.
On May 10 or 11, 2015 (before the written rebuttal) Annicelli submitted a request for
redress to Ocker. AR352–92. Annicelli argued that Ocker’s decision to remove him from
command was “arbitrary and capricious” and “clearly unfair” for numerous reasons. AR353–55.
He requested reinstatement as the Squadron Commander or, in the alternative, to be allowed to
retire as a graduate Commander, along with a retraction of the allegation of toxic leadership and
correction of the associated records. AR380. On May 28, 2015, after reviewing the Report and
evidence, Ocker noted that 24 of the 31 witnesses were negative towards Annicelli’s leadership
and concluded that he “never developed the art of command” as evidenced by the lack of trust and
confidence of those he commanded. AR303–06. Ocker denied the request for redress, concluding
that reinstatement would have a detrimental effect on the squadron and that Annicelli was not
eligible for retirement as a commander or for the elimination of his referral Officer Performance
Report. AR306.
On May 15, 2015, Annicelli submitted a similar request for redress to Lee. AR307–39.
On June 1, 2015, Lee denied the request, emphasizing that Annicelli possessed “authoritarian type
leadership” and citing similar evidence to what Ocker cited. AR300–02. Lee additionally
observed that under Annicelli’s leadership, the Squadron lacked a “healthy climate,” and that
Annicelli’s leadership “presented a safety problem for the pilots, aircrew, and other Airmen who
relied on the life support systems the [Squadron] is entrusted to maintain.” AR302. Lee denied
Annicelli’s request for redress, noting that Lee “fully supported the course of action and your
removal from command for loss of confidence.” AR302.
4
On June 22, 2015, Annicelli submitted a similar request for redress to Major General John
Shanahan, Commander of the 25th Air Force, and the General Court-Martial Convening Authority.
See AR273–92 (later supplemented by AR255–72). Annicelli noted that he still had not been
provided the witness statements underlying the Commander-Directed Investigation’s factual
findings. AR279. On July 27, 2015, Shanahan characterized Annicelli’s complaints as (1) having
never been informed of the specific allegations made to Ocker that led to the investigation and (2)
the investigation was neither factually or legally sufficient to provide Ocker with a basis for
removal. AR254. Shanahan denied the requested relief, finding that Ocker “did not abuse her
authority or act arbitrarily, capriciously, or unfairly in removing” Annicelli, and that she “acted
reasonably . . . based on her loss in confidence in [Annicelli’s] ability to safely command the unit.”
AR254. Shanahan also concluded that Lee did not wrong Annicelli by allowing Ocker to remove
him. AR254.
By operation of Air Force procedures, Shanahan’s decision was forwarded to the
Administrative Law Directorate within the Air Force Judge Advocate General Corps for
Secretarial Review. AR254. While review was pending, Annicelli voluntarily retired on August
31, 2015. AR250. On November 16, 2015, the Director concurred in Shanahan’s denial, stating:
By authority of the Secretary of the Air Force, I have reviewed all matters submitted
by you in your request for redress filed under Art 138, Uniform Code of Military
Justice (UCMJ), dated 22 June 2015. I have determined that the actions taken in
this matter by the Commander, 9th Medical Group [Ocker] and the Commander, 9th
Reconnaissance Wing [Lee] were appropriate. The denial of your request for
redress is hereby sustained.
AR253.
On March 22, 2016, Annicelli filed a FOIA suit seeking the release of the witness
statements used in the Commander-Directed Investigation. AR549–66. In July and August, the
agency released redacted versions of those statements. See AR929–1012.
5
On August 17, 2017, Annicelli applied for a correction of the military records. AR7–8;
AR9–1129. The Secretary of the Air Force is authorized to modify military records “when [he]
considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552; see
McDonough v. Stackley, 245 F. Supp. 3d 1, 4 (D.D.C. 2017). The Air Force does this through the
Air Force Board of Corrections of Military Records (the “Board”), a board of civilians who have
wide latitude to correct military records and to fashion remedies for former servicemembers. 32
C.F.R. §§ 865.0–865.8. The Board is not itself an investigative body, but considers applications
based primarily on the evidence of record, 32 C.F.R. § 865.2(c), though it may receive additional
information from an Air Force organization or official, id. at § 865.4(a)(1). Applicants are given
an opportunity to review and comment on any advisory opinions and additional information
obtained by the Board. 32 C.F.R. § 865.4(b). Ultimately, the applicant bears “the burden of
providing sufficient evidence of material error or injustice.” 32 C.F.R. § 865.4(a).
In his application, Annicelli sought correction of (1) the adverse referral Officer
Performance Report; (2) the adverse Promotion Recommendation Form; and (3) all records
showing his retirement from active duty on August 31, 2015. AR18–19. Annicelli’s application
was accompanied by newly acquired evidence, including statements from individuals with direct
knowledge of events regarding his removal and the investigation. See AR9; AR65–92. Annicelli
also analyzed the witness statements on which the Commander-Directed Investigation relied and
encouraged the Board to review the witness statements themselves. See AR46–51 (citing the
witness statements at AR929–1012). In brief, Annicelli’s application made two types of
arguments: (1) that his removal and the Commander-Directed Investigation were improper for a
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variety of reasons; 1 and (2) the Officer’s Performance Report—which referenced the
investigation’s report—was also factually flawed and inconsistent with Air Force regulations. See
AR29–37; AFI 36–2406, Officer and Enlisted Evaluation Systems (Apr. 5, 2013) (Def.’s Ex. 2,
ECF No. 13-4).
The Board sought advisory opinions from the Headquarters Air Force Personnel Center.
The first, from the Military Evaluations, Promotions, and Recognitions Operations Branch, dated
June 18, 2018, evaluated Annicelli’s request to have his Officer Performance Report voided, his
Promotion Recommendation Form replaced, and consideration by a Special Selection Board for
promotion to Colonel. AR1386–87 (referred to throughout the record as the “DP2SP Advisory
Opinion”). This opinion recommended denying these requests because Annicelli had never been
entitled to his proposed remedy while on active duty and had rendered himself ineligible for
promotion when he voluntarily retired from active duty. AR1386–87. The opinion also asserted
as a basis for denial that Annicelli had not exhausted all administrative remedies because he did
not file an appeal with the Evaluation Reports Appeals Board. AR1386.
1
Specifically, Annicelli argued his removal was a “rush to judgment” made before a real
investigation, AR19–20, as well as a number of arguments about the insufficiency of the
investigation. AR21–29. For example, he argued that the Commander-Directed Investigation
suffered from inappropriate command influence because Lee publicly labeled Annicelli a “toxic
leader” before the investigation got underway, AR23; the chief complainant was unreliable
because of a history of insubordination, AR23–24; the investigation was biased because it was led
by one of Lee’s subordinates and Lee had already publicly stated Annicelli was removed for toxic
leadership, AR 24; Ocker had significant contact with the investigator as the investigation was
ongoing, suggesting undue influence, AR24; Ocker and Lee made inconsistent statements about
the investigation, suggesting it was pretextual, AR25; Annicelli was never given a chance to
confront the allegations against him, AR25; the Investigating Officer used inappropriate and
outdated evidence, AR26; most of the evidence was weak, including unsubstantiated opinions and
rumors rather than first-hand accounts, and Annicelli had received no negative feedback prior to
his removal, AR27–28; and the Investigation did not sufficiently weigh mitigating factors, like
that Annicelli was not the cause of the squadron’s problems, was well-intentioned, had some buy-
in from his Squadron, and had no particular unethical or abusive conduct, AR28–29. Many of
these arguments cited particular Air Force regulations that Annicelli asserts were violated.
7
The second advisory opinion, from the Promotions, Evaluations, and Recognitions Branch,
dated March 11, 2019, contemplated Annicelli’s request to void the referral Officer Performance
Report and change his Promotion Recommendation Form to recommend “Definitely Promote.”
AR1388–90 (referred to throughout the record as the “DP3SP Advisory Opinion”). The opinion
recommended denial, concluding Annicelli had not shown he was entitled to relief because, as the
advisors put it, “we are unable to determine the legal sufficiency of the CDI, nor can we conclude
that the applicant’s removal from command was arbitrary and capricious.” AR1388–89.
Annicelli, through counsel, responded to the two opinions with various objections. He
asserted that the DP2SP Opinion was incorrect to state that he had failed to exhaust administrative
remedies—he had retired before he was eligible to undertake the particular type of appeal on which
the Opinion relied. AR1393. And he asserted that the DP3SP Opinion failed to address the “crux
issues” raised in his application, namely: there was insufficient credible evidence of his “toxic
leadership”; there is no definition of “toxic leadership”; and the Officer Performance Report did
not reflect his top performance marks prior to 2015. AR1393–95. Annicelli also argued that the
advisory opinions did not re-analyze the evidence, but rather regurgitated Ocker’s conclusion that
the Investigation substantiated the allegation of toxic leadership without any analysis. AR1393–
94.
On May 30, 2019, the Board issued a final decision on Annicelli’s application and denied
relief. AR2–6. After summarizing the record, the Board concluded that Annicelli’s application
was timely and had appropriately exhausted other remedies. AR5. The Board’s substantive
reasoning and conclusions consist of a single paragraph:
After reviewing all Exhibits, the Board concludes the applicant is not the victim of
an error or injustice. The Board concurs with the rationale and recommendation of
AFPC/DP3SP [the Second Advisory Opinion] and finds a preponderance of the
evidence does not substantiate the applicant’s contentions. The Board notes the 5
8
Apr 19 rebuttal letter contending the applicant presented substantial evidence of
material errors and injustice, and that the AFPC/DP3SP advisory opinion failed to
undermine the bases for the relief requested. However, the Board also notes, and
agrees with the 25th AF/CC, and USAF/JAA, 27 Jul 15 and 16 Nov 15,
determinations that the actions taken in this matter by the 9th Medical Group
Commander, and the 9th Reconnaissance Wing Commander were appropriate.
Therefore, the Board recommends against correcting the applicant’s records.
AR5 (citing the 2015 Shanahan and Director opinions at AR254, AR253). Shortly thereafter, the
Executive Director of the Board affirmed the panel’s vote, officially denying Plaintiff’s application
on June 17, 2019. AR1.
Annicelli then filed this suit. He asserts that the Board’s final decision is arbitrary and
capricious and lacks substantial evidence, in violation of the APA. See 5 U.S.C. § 706(2)(A). In
particular, he asserts that the Board opinion—including the Advisory Opinions the Board “agree[d]
with”—did not address all of his non-frivolous arguments. Compl. at 19–20, ECF No. 1. Annicelli
requests the Court set aside the Board’s opinion and remand the matter. Id. at 20. Both parties
move for summary judgment. ECF Nos. 13 & 14.
Legal Standards
The Court has jurisdiction over APA challenges based on the correction of military records.
See 10 U.S.C. § 1552 (providing for the correction of records); 5 U.S.C. § 702 (granting a cause
of action for review of agency action); 5 U.S.C. § 701(b)(1) (defining “agency” to include
governmental authority of the United States and exempting other parts of the military not
applicable here); 28 U.S.C. § 1331 (providing subject-matter jurisdiction).
A court may grant summary judgment “if the movant shows that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In an APA challenge, “summary judgment ‘serves as the mechanism for deciding, as a
matter of law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review.’” Bridgeport Hosp. v. Becerra, 2022 WL 612658, at
9
*6 (D.D.C. Mar. 2, 2022) (quoting Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006));
see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083–84 (D.C. Cir. 2011).
The APA provides that a “reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A); see Haselwander v. McHugh, 774
F.3d 990, 996 (D.C. Cir. 2014). To pass this test, agency action must demonstrate reasoned
decisionmaking, including grappling with substantial issues and recording the reasoning involved,
not just mere conclusions. See Calloway v. Brownlee, 366 F. Supp. 2d 43, 53 (D.D.C. 2005);
Dickson v. Sec’y of Defense, 68 F.3d 1396, 1405, 1407 (D.C. Cir. 1995) (concluding that
“[b]ecause the Board only listed the facts and stated its conclusions, but did not connect them in
any rational way, the Board’s decisions are arbitrary and capricious.”). Military corrections boards
may meet their obligation to provide a “reasoned explanation” for their decisionmaking by
referencing or incorporating the reasoning of an advisory opinion or other sources. Roberts v.
United States, 741 F.3d 152, 159 (D.C. Cir. 2014); Havens v. Mabus, 146 F. Supp. 3d 202, 216
(D.D.C. 2015).
Judicial review of Board decisions involves “an unusually deferential application of the
‘arbitrary or capricious’ standard.” Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C.
Cir. 1989). This is due to the Secretary’s exceedingly broad statutory authority to act “when he
considers it necessary to correct an error or remove an injustice.” Id. (quoting 10 U.S.C.
§ 1552(a)). Because “‘[j]udges are not given the task of running the [Air Force],’ [the Court’s]
review asks only if the Board’s decisionmaking ‘process was deficient, not whether [its] decision
10
was correct.’” McKinney v. Wormuth, 5 F.4th 42, 45–46 (D.C. Cir. 2021) (quoting Kreis, 866
F.2d at 1511) (some alterations original).2
Overall, the Board’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 [Board’s] path
may reasonably be discerned.’” Dickson v. Sec’y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995)
(quoting Bowman Transp., Inc. v. Arkansas–Best Motor Freight Sys., 419 U.S. 281 (1974)). The
Board’s explanation must, however, “minimally contain ‘a rational connection between the facts
found and the choice made.’” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)). Furthermore, the Board must respond to all non-frivolous
arguments raised by the applicant. Frizelle v. Slater, 111 F.3d 172, 174 (D.C. Cir. 1997)
(remanding where the Board failed to address two arguments that were not “facially frivolous”).
Analysis
The government concedes, as it must, that the Board’s opinion itself is sparse and relies
heavily on the reasoning of the Advisory Opinions that it incorporates. In fact, the Board
“concur[red]” with the reasoning of the DP3SP Advisory Opinion and “agree[d]” with the Article
2
The Parties suggest the Board’s decision must also be supported by substantial evidence, but that
standard only directly applies to formal adjudications and where required by statute. 5 U.S.C. §
706(2)(E); Phoenix Herpetological Soc’y v. U.S. Fish & Wildlife Serv., 998 F.3d 999, 1005 (D.C.
Cir. 2021); McKinney, 5 F.4th at 46. Adjudications to correct a military record are so required by
statute when the Board adjudicating the claim has been “designated as a special board by the
Secretary.” 10 U.S.C. § 1558(b)(1)(A) & (B); id. § 1558(f)(3)(B); see also McKinney v. Wormuth,
5 F.4th 42 (D.C. Cir. 2021). The record does not support that this Board is so designated in this
matter. Regardless, the Court of Appeals has held that these standards overlap in their evidentiary
requirements because substantial evidence must underlie reasoned decisions. Ass’n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 683 (D.C.
Cir. 1984).
11
138 Appeal Letters (Shanahan’s and the Director’s letters). AR5. As a result, the reasoning of
those opinions is incorporated here as the Board’s own reasoning, unless otherwise mentioned.
I. Arguments Addressed in the DP3SP Advisory Opinion.
The Board adopted the DP3SP Advisory Opinion. The Parties address that Opinion in
roughly paragraph-by-paragraph order, and so this opinion follows suit.
a. The Legal and Factual Sufficiency of the Commander-Directed
Investigation (Paragraphs B 3 & D 4 of DP3SP).
Annicelli argues that the Board’s Opinion is arbitrary and capricious because it failed to
make a determination as to Annicelli’s key complaint: that Annicelli’s Officer Performance
3
Paragraph b of the DP3SP Advisory Opinion states in full:
The applicant contends the Commander Directed Investigation (CDI) which
labeled him as a “toxic leader” was fatally flawed and wrongly used to justify his
permanent removal from command. In the brief provided by the applicant it states,
“the report’s conclusions are based on limited evidence gathering and flawed
analysis without context. There are several examples within the brief in attempt to
conclude the CDI was defective; however, in the 9 Medical Group Commander’s
response to the applicant’s redress it states, “Irrespective to your criticism, the CDI
substantiated what originally appeared to be toxic leadership and was assessed to
be legally sufficient by the 9 RW/SJA.” We are unable to determine the legal
sufficiency of the CDI, nor can we conclude the applicant’s removal from command
was arbitrary and capricious.
JA1388.
4
Paragraph d of the DP3SP Advisory Opinion states in full:
The applicant contends the OPR violates AFI 36-2406 1.12.7.1.1 which states,
“raters must ensure that information relied upon to document performance,
especially derogatory information relating to unsatisfactory behavior or misconduct
is reliable and supported by substantial evidence.” The brief indicates that this
paragraph was violated suggesting that the rater relied on a faulty CDI. The brief
states, “The CDI was so deficient that it deprived Col Ocker and Col Lee of
information that was reliable and it did not provide substantial, credible evidence
of abusive or toxic leadership . . .” As previously stated, we are unable to determine
if the legal sufficiency of the CDI. Therefore, we are unable to conclude that the
referral comment was false or was based on insufficient information. It appears the
rater adhered to para 1.12.7.1.1. in that the rater chose to document the substandard
12
Report was deficient because it relied on the Commander-Directed Investigation, which—he
argued—was itself factually and legally insufficient. Pl. Mot. at 28–30. The Board addressed this
argument, if at all, through its adoption of the DP3SP Advisory Opinion in paragraphs b and d.
That Opinion noted that Ocker had concluded—in response to some different criticisms of the
Officer Performance Report—“Irrespective to [Annicelli’s] criticism[s of the OPR], the CDI
substantiated what originally appeared to be toxic leadership and was assessed to be legally
sufficient by the 9 RW/SJA.” AR1388, AR304. 5 Annicelli complains that the DP3SP Advisory
Opinion (and therefore the Board) concluded “We are unable to determine the legal sufficiency of
the CDI,” and instead relied on Ocker’s reference to an apparently unproduced analysis that Ocker
described as being from the “9 RW/SJA,” and that officer’s conclusion about the legal sufficiency
of the Commander-Directed Investigation. AR1388. This, to Annicelli, is a straightforward
violation of the requirement for reasoned decisionmaking, including the principle that agencies
must consider all important aspects of the problem. See Calloway, 366 F. Supp. 2d at 53; see also
AFI 36-2603, para. 4.2.2.2 (requiring the Board consider “crux issues”).
behavior based on the substantiated CDI. Moreover, the applicant has provided
insufficient documentation to prove that the CDI was flawed.
JA1388.
5
Ocker asserted that the “9 RW/SJA” analyzed the legal sufficiency of the Commander-Directed
Investigation, but the government cites to no document containing the relevant analysis, nor does
it appear such a document is in the administrative record. While the record does suggest the 9
RW/SJA refers to Lieutenant Colonel Byron, AR282, the Court is not aware of where, if anywhere,
his analysis of the legal sufficiency of the Investigation is in the administrative record. Annicelli
asserts he was never provided any such document for review. Pl. Mot. at 29, n.8, ECF No. 14.
The record does include a document showing Byron signed a form to appoint Annicelli’s
temporary replacement, and by signing he apparently concluded the temporary appointment was
legally sufficient. JA137. But that is neither an indication of Byron’s conclusion that the CDI was
legally sufficient nor an explanation of his reasoning.
13
The government responds that the DP3SP Advisory Opinion did not fail to address
Annicelli’s arguments, but simply concluded that Annicelli “provided insufficient documentation
to prove the [Commander-Directed Investigation] was flawed.” AR1389. In the government’s
view, rather than declining to address the legal sufficiency of the Commander-Directed
Investigation (and thereby the legitimacy of Ocker’s comment in the Performance Report), the
Opinion concluded that Annicelli had failed to meet his burden to show that the Commander-
Directed Investigation was insufficient. The government argues this reading is bolstered by the
Opinion’s description of the investigation as a “substantiated CDI.” AR1389.
But even if the Board had been correct to conclude that Annicelli had provided insufficient
documentation to prove the Commander-Directed Investigation was flawed, its analysis is missing.
Annicelli’s application to the Board included a variety of arguments about flaws in the
Commander-Directed Investigation, but the Board did not address any of those arguments; instead,
it briefly noted Ocker’s conclusions and then concluded that it could not assess the legal
sufficiency of the Investigation. AR1389. The Court is left to guess why the Board made that
conclusion. Did the Board believe it lacked authority to assess the factual or legal sufficiency of
the Investigation? Did the Board believe it had the power to assess those questions, but that
Annicelli simply didn’t provide the right evidence? If so, what was missing? Or did the Board
actually reweigh the Investigation’s evidence and come to the same conclusion as Ocker, and just
phrased its conclusion in an odd manner? If so, on what grounds did it disagree with Annicelli’s
arguments?
The Court’s best guess is that, notwithstanding Annicelli’s arguments, the Board gave
dispositive weight to Ocker’s analysis of the factual basis of the Commander-Directed
Investigation and credited her characterization of the 9 RW/SJA assessment (whatever that was
14
exactly) as to the Investigation’s legal sufficiency. But even if this guess is correct (and the
Board’s decision doesn’t make that clear), it is not apparent why the Board didn’t conduct its own
analysis of those questions. There may be a simple, one-sentence explanation for that, but it’s
altogether lacking here, and the matter must therefore be remanded to the Board.
b. Vagueness of the Referral Officer Performance Report (Paragraph C of
DP3SP Advisory Opinion) 6
Annicelli also argues that the Board acted arbitrarily in adopting the DP3SP Advisory
Opinion’s conclusion that the Officer Performance Report 7 did not include impermissibly vague
commentary. Specifically, Annicelli argued that Ocker’s comment (“Relieved of command; CDI
substantiated toxic leadership; unhealthy org’l climate degraded unit effectiveness”) violated AFI
36-2406, paragraph 1.10.2.1 which prohibits raters from making “non-specific and/or vague
comments about the individual’s behavior or performance.” AR29. Annicelli asserted that the
6
Paragraph c of the DP3SP Advisory Opinion states in full:
The applicant is contesting his May 2015 OPR due to alleged errors and AFI
violations. The applicant contends the OPR violates AFI 36-2406 paras 1.8.4 and
1.10.2.1 as he believes the referral comment “fails to specifically detail the behavior
or performance that caused the report to be referred.” Although there is not a
definition for what is considered to be a vague comment, AFI 36-2406 para 1.10
provides examples of vague and specific comments. The referral comment in the
contested OPR states, “-Relieved of command; CDI substantiated toxic leadership;
unhealthy org’l climate degraded unit effectiveness.” This comment meets the AFI
requirement as it states the applicant was reli[e]ved of command and explains the
reason he was relieved as a result of a substantiated CDI. Furthermore, the
applicant was given the opportunity to refut[e] the comments and provide a rebuttal
to the referral OPR. The rebuttal was considered by the 9 Reconnaissance Wing
Commander as stated in Section V of the contested OPR.
JA1388.
7
Annicelli’s opening brief appears to argue that it was the DP3SP Advisory Opinion itself which
offered impermissibly vague commentary. See Pl. Mot. at 31. However, the argument in that
motion and in the reply relates to the Report’s commentary. See id. at 30–31; Pl. Reply at 7–8.
15
comment was vague because it failed to provide any details about when, where, or what he did
that qualified as “toxic leadership,” nor is there any Air Force definition of that term. AR29–30.
Annicelli argues here that the DP3SP Advisory Opinion—and therefore the Board—failed to
meaningfully respond to the argument. See Reeder v. James, 121 F. Supp. 3d 1, 9–10 (D.D.C.
2015).
The government argues that the DP3SP Opinion directly addressed the argument in ¶ c.
That Opinion stated “This comment meets the AFI requirement as it states the applicant was
reli[e]ved of command and explains the reason he was relieved as a result of a substantiated CDI.”
AR1388. The government contends that this conclusion satisfies AFI36-2406 paragraph 1.10.2.1,
and compares favorably to the regulation’s cross-reference to examples of acceptable statements
like, “Drove while intoxicated, received an Article 15” and “Failed to report to duty, received an
LOR.” Id. at 1.12.7.3.2, ECF No. 13-4 at 20.
The Court agrees with the government that the Board did not act arbitrarily or unreasonably
in concluding that Ocker’s comment is not impermissibly vague. Ocker explained that the problem
was not any particular action by Annicelli but the overall effect of his leadership in the Squadron.
And the Board considered Annicelli’s argument and concluded Ocker’s statement was not
impermissibly vague. 8
To be sure, neither the DP3SP Advisory Opinion nor the Board specifically addressed
Annicelli’s argument that “toxic leadership” does not have an official definition, but that, by itself,
8
The parties seem to have contrary assumptions. Annicelli appears to have taken the OPR as a
personal rebuke of his conduct and, naturally, would like an opportunity to refute any particular
incident of misconduct. On the other hand, the Board appears to have been operating with the
understanding that leadership failures can occur systemically, even without any particular incident
of misconduct. In other words, leadership failures can result from an accumulation of otherwise
innocuous decisions when combined with a particular environment. Both perspectives appear
reasonable.
16
does not render the opinion unreasonable. “Toxic leadership” is not a term of art but has a
sufficiently plain meaning that an ordinary person would understand: actively harmful leadership.
See Toxic, Merriam-Webster, https://www.merriam-webster.com/dictionary/toxic (“containing or
being poisonous material especially when capable of causing death or serious debilitation”;
“extremely harsh, malicious, or harmful”). This meaning is particularly clear when read in the
context of the rest of the comment, namely that the toxic leadership was associated with an
“unhealthy org’l climate [that] degraded unit effectiveness.” AR170. Annicelli’s argument that
he was unable to respond to the Officer Performance Report because it did not define “toxic
leadership” lacks merit, and thus the DP3SP Advisory Opinion was not unreasonable in ignoring
that argument.
c. Lack of Feedback (Paragraph E of the DP3SP Advisory Opinion)9
Annicelli argues that the Board—through the DP3SP Advisory Opinion—failed to address
a key argument: that Ocker’s lack of feedback supported Annicelli’s assertion that Ocker’s
9
Paragraph e of the DP3SP Advisory Opinion states in full:
The applicant contends he did not receive a written performance feedback as
required by the AFI. The brief states, “while the lack of performance feedback does
not, of itself, invalidate a subsequent OPR, it was Annicelli’s performance as a
squadron commander that was under scrutiny . . . . If Col Ocker has concerns about
Annicelli’s leadership she certainly should have provided written performance
feedback. Additionally, the failure to provide the required feedback in Dec 2014
suggests that Col Ocker was not keeping up with her responsibilities to provide
leadership over the 9th PSPTS.” [Accomplishing] the performance feedback is a
shared responsibility of both the rater and ratee as outlined in AFI 36-2406 para 2.2
and 2.2.2. Moreover, para 2.2.1.3. states that the ratee will “notify the rater and, if
necessary, the rater’s rater when required or requested feedback did not take place.
Lack of counseling of feedback, by itself, is not a sufficient reason to challenge the
accuracy or injustice of an evaluation.” Furthermore, a direct correlation between
feedback sessions and performance assessments does not necessarily exists IAW
para A2.5.8. The applicant did not supply sufficient evidence to show that the lack
of feedback directly resulted in an unfair or inaccurate evaluation.
17
statements and opinions were unfounded and a rush to judgment. AR31–32. Paragraph E of the
DP3SP opinion, according to Annicelli, only addressed a different feedback issue that Annicelli
does not now press: that the Officer Performance Report was invalid because Ocker failed to
provide feedback.
The government argues that the Advisory Opinion addresses Annicelli’s argument in
noting that “a direct correlation between feedback sessions and performance assessments does not
necessarily exist[]” and that Annicelli “did not supply sufficient evidence to show that the lack of
feedback directly resulted in an unfair or inaccurate evaluation.” AR1389. And the government
adds that Annicelli’s argument is not really an argument about the Advisory Opinion’s sufficiency,
but a request to reweigh the evidence.
The Court agrees with the government. The Board reasonably addressed Annicelli’s
argument when it concluded that he had not shown a correlation between feedback and
performance assessments. That is sufficient to defeat Annicelli’s contention that lack of feedback
invalidated the Officer Performance Report. It was reasonable for the Board not to consider the
issue further. In any event, Annicelli’s feedback argument, as presented, may have been better
considered as evidence concerning the sufficiency of Ocker’s evaluations rather than a separate
argument that required its own response. Nonetheless, the Board did address this piece of
evidence, and there is certainly sufficient evidence in the record to support the Board’s conclusion.
JA1389 (errors and ellipsis original).
18
d. The Report’s Consideration of Past Performance (Paragraph F of the
DP3SD Advisory Opinion)10
Annicelli also argued below that the Officer Performance Report failed to reflect his record
of superior duty performance. AR32–33. Annicelli’s application cited his long career of receiving
top marks in evaluations, including witness statements specifically acquired for the application.
See AR33. The DP3SP Advisory Opinion noted that some of the evidence Annicelli marshaled
was not reflected in the Officer Performance Report, but it concluded that Annicelli “has provided
insufficient documentation that the OPR was completed inaccurately. It appears the rater
completed the OPR IAW AFI 36-2406, Table 3.1, Item 16.” 11 AR1389. Annicelli argues here that
this determination is arbitrary and entirely conclusory because it merely parrots the language of
the regulation rather that reasonably analyzing facts to reach the conclusions. See Amerijet Int’l
v. Pistole, 753 F.3d 1343, 1350 (“[C]onclusory statements will not do; an agency’s statement must
10
Paragraph f of the DP3SP Advisory Opinion states in full:
The applicant contends the contested OPR fails to accurately reflect his superior
duty performance in all areas, including leadership skills. The brief states,
“Annicelli’s 2015 OPR failed to properly credit him for his overall good leadership
performance,” and suggests that none of his significant accomplishments are
reflected on the 2015 OPR. Although the applicant has provided documentation
supporting some accomplishments that are not reflected on the OPR, he has
provided insufficient documentation that the OPR was completed inaccurately. It
appears the rater completed the OPR IAW AFI 36-2406, Table 3.1, Item 16.
JA1389.
11
While the applicable version of the table does not appear in the record, Item 16 in the November
2016 version refers to the Last Performance Feedback Date. This would be a non-sequitur, but if
it refers to what the November 2016 version of the document titles Item 15, it would follow. Item
15 is entitled the “Rater Overall Assessment” and includes instructions for how to include
comments. See AFI 35-2406, November 2016, available at
https://www.mcmilitarylaw.com/documents/afi_36-2406.pdf. Regardless, this interpretation was
not pressed by the government.
19
be one of reasoning.” (emphasis original) (quotation marks omitted)); Xiaomi Corp. v. Dep't of
Def., 2021 WL 950144, at *5 (D.D.C. Mar. 12, 2021).
The government argues that Annicelli’s argument is a red herring: the inclusion or non-
inclusion of his historical performance ratings is not relevant to the Officer Performance Report
(or the sufficiency of the Investigation that predicated the Report). And the Officer Performance
Report certainly included enough evidence to reach its conclusions.
The Court agrees. While its analysis is short, the Advisory Opinion contemplated the
additional evidence that Annicelli provided and concluded that the Officer Performance Report
was not completed inaccurately and so there was no error to correct. Annicelli did not point (and
has not pointed here) to any particular mandatory provision of the guidelines for Commander-
Directed Investigations that was violated, and the Court concludes there was no error or injustice
in the Officer Performance Report being focused on the particular period of conduct at issue.
e. Promotion Recommendation Form (Paragraph G of the Advisory
Opinion)12
Annicelli argues here that the Board never even addressed his arguments about the
Promotion Recommendation Form in a meaningful way. The Board opinion deferred entirely to
12
Paragraph g of the DP3SP Advisory Opinion states in full:
The applicant is requesting to replace the Promotion Recommendation Form (PRF)
for board ID P0615B with a reaccomplished PRF reflecting an overall
recommendation of “Definitely Promote”. AFI 36-2406 para 10.2.4.6 states “the
Board will not approve nor consider requests to change an evaluator’s rating or
comments if the evaluator does not support the change.” Moreover, the applicant
has not provided documentation from neither his Senior Rater nor Management
Level Review (MLR) President supporting the promotion recommendation change
from “Do Not Promote This Board” to “Definitely Promote” IAW para A2.6.2.4.
20
the DP3SP Advisory Opinion on this point; the Advisory Opinion rejected Annicelli’s arguments
on the basis of a regulation relating to a different “board” that are concededly inapplicable.
The government’s sole response is that the error was harmless. Gov’t Reply at 17–20, ECF
No. 16; Jicarilla Apache Nation v. U.S. Dep’t. of the Interior, 613 F.3d 1112, 1121 (D.C. Cir.
2010); see also 5 U.S.C. § 706 (“In making the foregoing determinations . . . due account shall be
taken of the rule of prejudicial error.”). The government argues that the board referenced in the
regulation—Evaluation Report Appeals Board—applies the same standard of review as the Board
here. That other Board “was established to provide all Air Force personnel with an avenue of
relief for correcting error or injustices in evaluations at the lowest possible level.” AFI 36-2406
paragraph 10.1.1; ECF No. 14-6 at 8 (emphasis added). The government argues this is the same
standard that the Secretary—and therefore the Board here—applies in correcting military records.
See 10 U.S.C. § 1552(a)(1) (the Secretary corrects records when he or she “considers it necessary
to correct an error or remove an injustice.”). Furthermore, the government argues that the
Promotion Recommendation Form—and Ocker’s “Do Not Promote” recommendation—naturally
followed from Annicelli’s removal from command after the Commander-Directed Investigation
substantiated that Annicelli was a toxic leader. AR182; AR170; AR119.
The Court disagrees. Even though the two sets of regulations have the same goal—
correcting errors and injustices in military records—that does not mean they apply the same
evidentiary standards. Indeed, having the same standards for both boards may be odd because
Additionally, the applicant has not provided a substitute PRF reaccomplished by
his Senior Rater IAW para 10.2.4.7.
JA1389.
21
ERAB is geared towards active servicemembers whereas the Board here corrects records of retired
ones.
The Court cannot conclude the error was harmless. To do so here would be to “pass on the
correctness of the Board’s decision,” which Kreis holds is improper. McDonough v. Stackley, 245
F. Supp. 3d 1, 8 (D.D.C. 2017) (citing Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511 (D.C.
Cir. 1989)). The government does rely on cases in which errors were considered harmless. See
Gov. Opp. at 17–20, ECF No. 16. But those cases involved largely procedural mistakes in which
there was no apparent effect on the ultimate decision or reasoning. See Coe v. McHugh, 968 F.
Supp. 2d 237, 243 n.2 (D.D.C. 2013) (granting summary judgment where the ABCMR’s reliance
on an outdated but identical version of a regulation was harmless); Charlton v. Donley, 846 F.
Supp. 2d 76, 89 (D.D.C. 2012) (granting summary judgment for the Board because plaintiff failed
to show how receiving two days notice before a hearing, rather than the required three, impacted
his defense); Selman v. United States, 723 F.2d 877, 881 (Fed. Cir. 1983) (affirming dismissal of
claims despite Secretary’s failure to state reasons for denying promotion, where it can be inferred
“he adopted the reasons urged upon him in opposition to the promotions.”). Here the government
asks the Court to conclude that the Board—which denied Annicelli’s claim on procedural
grounds—would have come to the same conclusion if it had considered the question on substantive
grounds. That is squarely off-limits for this Court. Kreis v. Sec’y of the Air Force, 866 F.2d 1508,
1511 (D.C. Cir. 1989).
To be sure, Annicelli’s case does not appear particularly strong. As the government argues
here (and Annicelli does not rebut), it seems to follow that given the evidence of the loss of
confidence in his leadership, it was neither an error nor an injustice for Annicelli not to be
recommended for promotion soon thereafter. Indeed, before the Board Annicelli did not provide
22
reasons to change the PRF independent from his arguments about the Officer Performance Report.
See AR29–37. But the Board’s decision regarding the Officer Performance Report must be
remanded, see supra et infra, and this one must be too.
II. Argument Not Addressed in the DP3SP Advisory Opinion.
Annicelli argued during the administrative process that, because his previous ratings were
so inconsistent with the Officer Performance Report, the Board had independent grounds to grant
relief. AR34–35. That is, Annicelli argued that even if the Officer Performance Report was
otherwise valid, his long history of superior performance was another reason to grant relief. In
support of this position, Annicelli relied on two Board decisions in which relief was granted in
similar circumstances. AR34–35 (citing and discussing AFBCMR Dkt. Nos. 95-02759; 2005-
03320). 13
The Board does not appear to have addressed this argument, but the government argues
that any error was harmless because Annicelli failed to develop the argument below. To be sure,
parties challenging administrative action in court must have made before the agency the “specific
argument” they press in court. Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013); Tindal v.
McHugh, 945 F. Supp. 2d 111, 130 (D.D.C. 2013); see also 32 C.F.R. § 865.4(a) (“The applicant
has the burden of providing sufficient evidence of material error or injustice.”). The government
argues that Annicelli failed to provide sufficient evidence of error or injustice because he failed to
explain the two Board precedents in sufficient detail and Annicelli’s reply to the Advisory Opinion
included—at most—an oblique reference to the argument. See Gov. Opp. at 21–22, ECF No. 16;
Tindal, 945 F. Supp. 2d at 130 (“[T]he Board is not required to make a claimant’s case for him or
13
These Board decisions do not appear to be in the administrative record before the Court.
23
sift through the materials submitted by a claimant to discern whether any implied arguments are
being made”).
The Court disagrees: Annicelli clearly raised the issue in his application. His
memorandum to the Board included a separately-headed section entitled “Annicelli’s 2015 OPR
is so starkly inconsistent with his performance ratings and awards before, and after, that eight
month period from late June 2014 to February 2015, that its accuracy should be discounted and it
should be removed from his records.” AR35–36; see also AR37 (emphasizing Annicelli’s long
career of superior performance). This section presented the argument that because of his past
performance, the Officer Performance Report should be removed from his record; it cited to
relevant evidence and analogized to Board precedent. While Annicelli did not make the argument
in as much detail as possible, a fair reader would understand his argument, and the government
has cited no Board rule or principle of administrative law requiring more.
But it is a closer call whether Annicelli’s rebuttal to the Advisory Opinion maintained the
argument. See AR1395. The only relevant section is Section F (which analyzes the DP3SP
Advisory Opinion ¶ f), in which Annicelli complained that the Officer Performance Report was
deficient because it failed to mention his superior ratings. But that is not the same issue; the
question here is whether his past performance provided an independent ground for removing the
referral Officer Performance Report. The closest the rebuttal gets is Section F’s last sentence:
“Furthermore, the advisory does not even address the claim that his one bad OPR is totally
inconsistent with all his other outstanding OPRs.” AR1395.
While a close call, the Court concludes that this, in combination with the section in
Annicelli’s initial brief, was enough to put the Board on notice of this argument. See Nuclear
Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1290 (D.C. Cir. 2004) (to preserve a factual or legal
24
argument for judicial review, an agency must have been given a “fair opportunity” to entertain it).
Annicelli made a non-frivolous argument that his lengthy career of decorated service provided an
independent reason to overturn the Officer Performance Report. To be sure, the Board may be
able to distinguish or overturn its prior decisions, but that is a question for the Board in the first
instance, not this Court. And even if the Board concludes the precedent is inapplicable or non-
binding, the Board would nonetheless have to address the argument that the Officer Performance
Report is an injustice given Annicelli’s career of superior performance.
III. The Article 138 Appeal Letters.
Annicelli argues that the Board’s reference to the Article 138 denial letters—Shanahan’s
July 27, 2015 letter and the Director’s November 16, 2015 letter—does not cure other defects in
the Board’s reasoning. The letters are themselves devoid of reasoning and, he argues, do not
answer the various arguments he made before the Board because they long predate his application
to the Board and his arguments thereto. Such arguments include the factual and legal sufficiency
of the CDI guide, new evidence of favorable witness statements, and inconsistencies in the
Investigation’s witness statements that Annicelli noted and criticized.
The government appears to disagree. The government first argues that the DP3SP
Advisory Opinion adequately addressed Plaintiff’s concerns, which, if true, make the Article 138
letters irrelevant. Next, the government notes that, while the Article 138 denial letters did not
directly respond to Annicelli’s arguments before the Board, they did respond to Annicelli’s general
argument that the CDI was fatally flawed. The government argues the Letters demonstrate
Shanahan and the Director addressed Annicelli’s arguments, and then the Board, after conducting
its own review of the evidence, concurred in the Letters’ conclusions.
25
To the extent the government contests Annicelli’s argument, the position lacks merit.
Neither of the Article 138 Letters contains anything of relevance more than conclusions, and
neither addresses Annicelli’s arguments made to the Board. Shanahan’s letter stated in relevant
part:
Your request for relief and additional investigation is denied. I find that Colonel
Ocker did not abuse her authority or act arbitrarily, capriciously, or unfairly in
removing you as commander of the 9 PSPTS. Based upon my review of the
evidence, I find that Colonel Ocker acted reasonably in relieving you from
command based on her loss in confidence in your ability to safely command the
unit. Furthermore, I find that you were not wronged by Colonel Lee because you
were relieved from command by Colonel Ocker.
JA 254. And the Director’s letter stated in relevant part:
By authority of the Secretary of the Air Force, I have reviewed all matters submitted
by you in your request for redress filed under Article 138, Uniform Code of Military
Justice (UCMJ), dated 22 June 2015. I have determined that the actions taken in
this matter by the Commander, 9th Medical Group [Ocker] and the Commander, 9th
Reconnaissance Wing [Lee] were appropriate. The denial of your request for
redress is hereby sustained.
JA253. The letters themselves do not discuss, let alone engage with, the various arguments
Annicelli made to the Board. And they contain no reasoning that is applicable to the shortcomings
in the DP3SP Advisory Opinion discussed above. The Board’s reasoning is not bolstered by these
Article 138 Letters, and they do not provide a separate basis to uphold the decision of the Board.
Conclusion
For the foregoing reasons, the Court concludes that the Board has not reasonably addressed
certain parts of Annicelli’s application. The Court takes no view on whether Annicelli can or
should prevail in his application, only that the Board must respond to his non-frivolous arguments.
26
Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment, GRANTS
Plaintiff’s Cross-Motion for Summary Judgment, and REMANDS the matter to the Board. An
Order will issue contemporaneously with this memorandum opinion.
DATE: March 30, 2022
CARL J. NICHOLS
United States District Judge
27