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GAZLAY v. BUSEY

April 5, 1993

ROBERT L. GAZLAY, Plaintiff,
v.
JAMES B. BUSEY, Defendant.



The opinion of the court was delivered by: HAROLD H. GREENE

 I

 Robert Gazlay, an officer of the United States Coast Guard, was passed over for promotion to commander in 1989 and 1990. The selection board decided not to promote Gazlay on the basis of several less than outstanding Officer Evaluation Reports ("OER's") filed by Gazlay's supervisor, Captain John R. Sproat. However, upon learning that Gazlay was not promoted, Captain Sprout reevaluated his original OERs, determined that they were incorrect, and wrote Coast Guard Headquarters requesting that the first OERs be expunged from plaintiff's record and be replaced with a second set of OERs. The second group of OERs gave Gazlay a much higher performance rating and expressly recommended promotion. In his letter, Sproat explained that he misunderstood the OER system and the impact that some of his comments would have upon Gazlay's performance opportunities. He emphasized that a promotion to commander was "clearly deserved."

 As required, this Final Decision ("Final Decision I") was forwarded to the Office of General Counsel of the Department for review. *fn1" An Assistant General Counsel reviewed the decision and returned it to the BCMR. On July 26, 1991, more than 10 months after the submission of plaintiff's application, the BCMR issued a second Final Decision ("Final Decision II"). In Final Decision II, the BCMR reversed itself and left the original OERs and reference to the two earlier passovers in Gazlay's file. The promotion was left intact but was not backdated. The reversal was based not upon any regulation but upon an aversion to setting a precedent permitting changes to personnel records. *fn2"

 Commander Gazlay seeks to have Final Decision II overturned and Final Decision I reinstated. The Court agrees that Final Decision I fixed the rights of Commander Gazlay and could not be varied by a second final decision issued over ten months later.

 II

 In an effort to ensure that applications for corrections of military records are handled expeditiously, Congress passed legislation requiring BCMR decisions to be completed within 10 months of submission of an application. Coast Guard Authorization Act of 1989, § 212, Pub. L. 101-225, 103 Stat. 1914. The BCMR's inability to act upon applications within a reasonable time and quickly enough to afford plaintiffs relief was brought to Congress' attention by the Moore settlement. See Moore v. Board of Correction for Military Records, Stipulation of Settlement and Dismissal, Civ. No. 87-2689 (D.D.C. filed April 29, 1988).

 In Moore, a group of plaintiffs sued claiming that the BCMR's failure to decide applications expeditiously violated the Administrative Procedures Act. In settling the case, the Coast Guard agreed to take measures to ensure was expeditious resolution of applications. Congress noticed the case and in response passed section 212 with its ten month time limit. See Letter from Walter B. Jones, Chairman, and Robert W. Davis, Ranking Minority Member, Committee on Merchant Marine and Fisheries, to the Coast Guard, (May 30, 1990) ("We first became aware of the problems with the BCMR when a group of past and present Coast Guard personnel sued the BCMR over delays in processing applications for relief."). Furthermore, when it became apparent that the regulations being promulgated by the Coast Guard to implement the ten month rule would result in review of application taking longer than ten months, Congress insisted that the regulations be revised to ensure action on applications within the statutory time period. Id. Congress was clear. It enacted section 212 to end the delay, and it expected the time limits to be respected. See H.R. Rep. No. 227, 101st Cong., 1st Sess. 32-33.

 The Coast Guard concedes that Congress established a ten month deadline to reduce delay but argues that this statutory deadline is not mandatory. According to the defendants, "a statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision." St. Regis Mohawk Tribe v. Brock, 769 F.2d 37, 41 (2d Cir. 1985). Here, Congress failed to indicate the consequence of failing to act within the ten month period. Accordingly, defendants assert, the delay associated with responding to Commander Gazlay's application is irrelevant.

 Defendants give only a partial reading of the case law. Most importantly, the Supreme Court in Brock v. Pierce County, 476 U.S. 253, 262, 90 L. Ed. 2d 248, 106 S. Ct. 1834 (1986) noted that while the general rule is that a statutory deadline "standing alone, is not enough to remove" the agency's power to act after the deadline, that result is not required in all such instances. The Court explained that

 
we need not, and do not, hold that a statutory deadline for agency action can never bar later action unless the consequence is stated explicitly in the statute.

 Id. at 262 n.9. The Court indicated that the question ultimately is one of congressional intent. Indeed, the St Regis court goes on to point out that a deadline is not mandatory "in the absence of persuasive extrinsic evidence" that Congress intended it to be binding. In the view of this Court, such "persuasive extrinsic evidence" is found in this case.

 In Pierce County, the legislative history demonstrated that Congress did not intend the deadline in that case to take from the Secretary power to act after passage of the deadline. Id. at 263. Similarly in St. Regis Mohawk Tribe, the Court was able to point to an exchange on the House floor demonstrating that the ...


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