rendered that report 'adverse' so as to have required the reporting officer to have shown it to him after its preparation and prior to its filing.
Defendants have submitted an affidavit of Rear Admiral Knudsen as to the practice of what constitutes an 'adverse' report. This affidavit is set out in part below:
'By long standing practice, the determination as to what constituted an adverse fitness report was governed by the reporting officer's entries in Sections 14, 15, 16, and 19 of the fitness report form * * * Section 17, COMMENTS, was considered to be merely a means for providing the reporting officer with an opportunity to explain the marks given in Sections 14, 15, and 16, and, unless the comments were totally at variance with such marks, they were not treated as a sufficient basis for considering the fitness report to be adverse. This practice was in accordance with the instructions for filling in Section 17 as given on the form itself * * *'.
For the Court to say that the 1956 report was 'adverse' under Coast Guard regulations and that it, therefore, should have been shown to the plaintiff, would be a substitution of the Court's judgment for that of the Coast Guard as to the proper interpretation and long standing application of the regulations. The test for judicial review of an interpretation of an administrative regulation is if the interpretation is within the competence of the agency making it and is a reasonable one, it will not be disturbed by the Court. Baxter v. Macy, 117 U.S.App.D.C. 72, 325 F.2d 645 (1963). The Court is aware that in denying plaintiff's motion for preliminary injunction on July 10, 1964, it concluded that the 1956 report should have been submitted to the plaintiff for his comments. However, after consideration of the expanded record and of the arguments in the recent hearing, the Court is of the opinion that the determination that the 1956 report was not 'adverse' under Coast Guard regulation was within the competence of the officials involved and was not, under long standing practice, an unreasonable interpretation of the regulation.
Moreover, even though this allegedly 'adverse' report was not shown to the plaintiff for rebuttal, three Selection Boards have considered the fitness of this officer, based on information contained in twenty or more fitness reports, the majority of which both prior to and subsequent to the 1956 report, have unfavorable comments in them. These three boards all denied plaintiff's promotion.
As this Court has already held in the instant case, it 'is not permitted to sit in judgment on this officer's fitness for promotion or on the propriety of the action of the promotion board.' Sohm v. Dillon, 231 F.Supp. 973, 974 (D.C.D.C.1964).
As stated in Payson v. Franke, 108 U.S.App.D.C. 368, 282 F.2d 851, 854 (1960):
'It is not our function to reasses the appellant's performance record which the selection board deemed unsatisfactory. * * * Suffice it to say that we are in no position to assess and appraise that record by itself even were we free to do so.'
Finally, the Supreme Court has stated in Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S. Ct. 534, 540, 97 L. Ed. 842 (1953):
'* * * judges are not given the task of running the Army. * * * Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.'
Since the determination of the Selection Boards that plaintiff not be promoted will not be disturbed by this Court, the order retiring plaintiff from active service was clearly authorized under 14 U.S.C.A. § 285 (Supp.1964) as set out above, and will likewise not be disturbed.
There being no issue of material fact, and in accordance with the foregoing, defendants are entitled to judgment as matter of law.