United States District Court, District of Columbia
April 24, 2000
EDDIE A. CURTIS, PLAINTIFF, AND J. DAVID CARROLL, PLAINTIFF-INTERVENOR
F. WHITTEN PETERS, SECRETARY OF THE AIR FORCE, DEFENDANT.
The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This matter is before the Court on the parties' cross-motions for
summary judgment and on plaintiff Eddie A. Curtis' motion for class
certification. Both plaintiff and plaintiff-intervenor J. David Carroll
(collectively "plaintiffs") contend that the Air Force violated its
statutory directives when it used certain complex procedures to review
their candidacies for promotion from Major to Lieutenant Colonel. Because
plaintiffs were denied promotions in two consecutive years, they were
discharged under the Air Force's "up or out" policy. Plaintiffs ask to be
reinstated in the Air Force Reserves and have their promotions considered
once again using the proper procedures. The Court finds that the Air
Force's procedures were not arbitrary, capricious or contrary to law. It
therefore grants defendant's motion for summary judgment and denies
Plaintiff Eddie A. Curtis brought this lawsuit on April 7, 1998 to
contest the procedures by which the Air Force reviewed his candidacy for
promotion from Major to Lieutenant Colonel in the Air Force Reserves.
Specifically, Major Curtis was considered for promotion in June 1995 for
Fiscal Year 1996 and in June 1996 for Fiscal Year 1997. Major Curtis was
denied promotion each time. Because the Air Force's codified policy is
that Reserve officers who fail to be promoted after two consecutive
efforts must be discharged, Major Curtis was discharged on May 27, 1997.
See 10 U.S.C. § 14506, 14513.
Plaintiff-intervenor J. David Carroll also was considered for promotion
from Major to Lieutenant Colonel in Fiscal Years 1996 and 1997. He, too,
was denied promotion during the same two years and discharged under the
"up or out" policy. For some reason that is not clear from Major
Carroll's complaint, he was not discharged until June 25, 1999.
During Fiscal Years 1996 and 1997, promotion decisions were governed by
10 U.S.C. § 8362 and 8367.*fn1 In relevant part, Section 8362
(a) Under such regulations and in such number as he
may prescribe, the Secretary of the Air Force, or
such authority as he directs, shall from time to time
appoint and convene selection boards to consider
reserve commissioned officers for promotion under
this chapter. . . .
(e) A recommendation for promotion must be made by
the majority of the total membership of the board.
(f) An officer eligible for consideration for
promotion by a board under this chapter is entitled
to send a letter, through official channels, calling
attention to any matter of record in the armed forces
concerning himself that he considers important to his
case. . . . A letter sent under this subsection may
not be considered by a selection board unless it is
received by the time the board convenes.
10 U.S.C. § 8362(a), (e), (f) (repealed) (emphasis added). Section
(b) When an officer in the reserve grade of first
lieutenant, captain, or major must be considered
under section 8366(a) of this title for promotion
because of length of service, the Secretary may —
(1) furnish to the board a list of officers to be
considered for promotion to the grade concerned; and
(2) direct the board to recommend the officers on
that list who it considers fully qualified for
10 U.S.C. § 8367(b) (repealed) (emphasis added).
On the basis of these statutory directives, the Air Force created a
complicated system to review candidates for promotion in the Air Force
Reserves. The process began with the appointment of a selection board of
25 members. The 25 members were then divided into five panels of five
members each. In the promotion reviews at issue in this case, three of
the panels were charged with reviewing "line" officers such as
plaintiffs, while the other two panels reviewed "non-line" officers.
After a practice session intended to adjust the variations in scoring
between panel members in order to ensure consistency, the file of each
candidate was randomly distributed to one of the five panels for its
review. Each panel received the files of about 300 candidates to review.
The five members of the panel to which a file was assigned then reviewed
each file and individually scored each candidate on a scale of 6 to 10.
The scores of the five members were added up to give each candidate a
total score. After completion of this initial round of scoring, the
candidates before each panel were ranked in order of their scores.
Each panel then began the second round of the selection process by
identifying the score category that would result in the percentage of
candidates getting promoted that was equal to the average percentage that
had been promoted in the past five years — what the Court will call
the "past select rate score." For example, if an average of 33 percent of
candidates had been promoted over the previous five years, then the panel
would begin the process by reviewing and voting on all candidates that
received a score equal to the candidate ranked number 100 out of the 300
applicants, i.e., behind 33 percent of the candidates. For each candidate
who received the "past select rate score," the panel voted by secret
ballot whether the candidate was "fully qualified" for promotion. The
panel members were instructed that they must find beyond a reasonable
doubt that a candidate was fully qualified before they could vote to
promote him or her. If the vote was 4-1 or 5-0 for or against promoting a
particular candidate, the majority decision was final. If the vote was 3-2
in either direction (a "split" vote), the records were opened for
discussion and then put to a second vote by panel members. The majority
position on whether to promote a candidate after the second vote was
binding; at that point a candidate receiving as few as three "yes" votes
was considered fully qualified for promotion.
After voting on the candidates with the "past select rate score," the
panel repeated the voting process for candidates with scores that were
incrementally higher and incrementally lower than the "past select rate
score," beginning with the scores immediately above and immediately below
the "past select rate score," until it determined a score at which it
found that all of the candidates for promotion were fully qualified and a
score at which it rejected all of the candidates for promotion as not
fully qualified. These two scores were called the "select all" score and
the "select none" score, and the area in between the two scores was
called the "gray area." The panel then automatically recommended
promotions without further discussion or vote for all of the candidates
whose scores were equal to or higher than the "select all" score. It also
recommended promotions for all of the candidates who the panel had
already discussed and found to be fully qualified from within the "gray
area." The panel did not recommend those candidates at or below the
none" score and did not recommend those candidates who were expressly
rejected within the "gray area." Each panel member reviewed the final
list of candidates considered by the panel of which he or she was a
member to ensure that the panel's decision on each candidate was
The five panel members did not review the decisions of the other four
panels or the files presented to the other panels, but each of the 25
board members nevertheless signed a report certifying that (1) the board
had "carefully reviewed the record of each officer submitted to it for
consideration," (2) "[v]oting was done by secret ballot," and (3) "[i]n
the opinion of a majority of the voting members [of the board], the
officers recommended are fully qualified for promotion to the grade of
lieutenant colonel, Reserve of the Air Force." Administrative Record
("AR") at 187-91, 386-90.
Finally, the entire process was overseen by a non-voting Board
President who had the power to intervene in a few situations. First, if
during the initial round of scoring there was a discrepancy of two or
more points between the scores of two panel members and the members could
not close the gap between their scores after discussion, the President
would intervene and either mediate the dispute or give the record to
another panel to score. Second, the President was responsible for general
oversight of the panels' scoring. If the President believed that any
candidate's record was being scored by a panel in a manner inconsistent
with the scoring of the overall board, he or she could direct another
panel to review it and could determine which score better reflected the
actual merit of the candidate. Finally, during the second round of
review, the President reviewed records within the "gray area" to ensure
consistency between the panels. If the President perceived an
inconsistency, he or she could direct a panel to reconsider the record of
A. Standard of Review
Plaintiffs contend that the procedures used by the Air Force to review
their applications for promotion were contrary to law for four reasons:
(1) the procedures used did not result in the candidates being
"considered" by the full board, but only by a panel consisting of
one-fifth of all board members, and did not result in a recommendation
being made by a "majority" of the full board; (2) the Board President had
the power to override the voting members by deciding which panel's votes
would count; (3) panel members were instructed to determine if a
candidate was qualified "beyond a reasonable doubt" without any statutory
basis for that standard; and (4) panel members were instructed to make
comparative judgments despite the fact that they were to determine if
each candidate was "fully qualified."
Under the Administrative Procedure Act, the Court may set aside agency
actions, findings or conclusions only when they are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law. 5 U.S.C. § 706(2)(A). The standard of review is governed by the
familiar Chevron doctrine:
When a court reviews an agency's construction of the
statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the
precise question at issue, the court does not simply
impose its own construction of the statute. . . .
Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency's answer is based
on a permissible construction of the statute.
Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984); see North Broward Hospital District
v. Shalala, 172 F.3d 90, 93 (D.C. Cir. 1999); Small v. United States,
158 F.3d 576, 580-81 (Fed. Cir. 1998).
While deference under Chevron is usually given in the context of an
agency regulation or rule or an administrative adjudication, the Court
should still "defer to an agency's interpretation of a statute even if
proffered outside administrative adjudication or rulemaking so long as
[the court is] assured it is the `official interpretation.'" General
Services Admin. v. Federal Labor Relations Auth., 86 F.3d 1185, 1188
(D.C. Cir. 1996); see also OSG Bulk Ships, Inc. v. United States,
921 F. Supp. 812, 825 (D.C. 1996), aff'd, 132 F.3d 808 (D.C. Cir. 1998).
In particular, when the agency's interpretation of a statute is
"longstanding and consistent," the Court should defer to the agency's
interpretation. FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 438, 106
S.Ct. 1931, 90 L.Ed.2d 428 (1986); see Association of Bituminous
Contractors, Inc. v. Apfel, 156 F.3d 1246, 1251-52 (D.C. Cir. 1998)
(quoting Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d
79 (1997)) (court should defer to agency's interpretation "as long as it
represents the agency's `fair and considered judgment on the matter'").
As the use of the selection procedures at issue in this case by the Air
Force has been in existence for at least 14 years prior to their
application in this case, see H.R.Rep. No. 97-141, 97th Cong., 1st Sess.,
at 12 (1981), reprinted in 1981 U.S.C.C.A.N. 24, 35, the Court will apply
the deferential standard of Chevron in its review. See Small v. United
States, 158 F.3d at 580-81 (deference should be given to the review of
the Air Force's procedures for determining promotions).
Finally, the actions of the Air Force are entitled to even greater
deference than are other agency actions because decisions of the military
regarding its personnel are reviewed under the APA by "an unusually
deferential application of the `arbitrary and capricious' standard. . .
." Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir.
1989). As the Supreme Court has noted, "[o]rderly 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." Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97
L.Ed. 842 (1953); see also Goldman v. Weinberger, 475 U.S. 503, 507, 106
S.Ct. 1310, 89 L.Ed.2d 478 (1986).
B. Were Plaintiffs' Records "Considered" By The Board And Recommendations
Made By The "Majority Of The Board"?
Plaintiffs first argue that the Air Force violated the relevant
statutes because their records were never "considered" by the entire
25-member board and the promotion decisions were never voted on by a
"majority of the total membership of the board," as required by statute.
See 10 U.S.C. § 8362(e), 8367(b). Plaintiffs maintain that the plain
language of the statutes does not allow anything less than consideration
by the entire convened 25-member board acting together. In addition to
the statutory language itself, plaintiffs also cite Defense Department
Directive 1320.12, which provides that "[b]oard members are to base their
recommendations on the material in each officer's official military
record," as further evidence that the entire board must consider each
candidate. See DOD Directive 1320.12, Plaintiff Eddie A. Curtis'
Cross-Motion, Appendix at 126. In particular, plaintiffs argue that board
members cannot comply with the directive and "base their recommendations
on the material in each officer's official military record" if 20 of the
25 board members never even looked at the officer's file. Id.
Defendant counters that the statute does not address what procedures
may be used to arrive at a majority decision on promotions and that its
procedures were in keeping with the statute. So long as a majority of all
board members formally adopts the findings and recommendations of each
panel as that of the entire board, defendant maintains that the statute
has been followed. As Congress has not "directly spoken to the precise
question at issue," defendant contends that the Court should uphold
defendant's interpretation of the statute as a permissible one under
Chevron. See Chevron v. Natural Resources Defense Council, 467 U.S. at
842, 104 S.Ct. 2778 (if court determines Congress has not directly
addressed precise question at issue, question for court is whether
agency's interpretation is based on permissible construction of
Defendant's argument is consistent with the recent decision of the
United States Court of Appeals for the Federal Circuit, which considered
the application of nearly identical procedures to the review of
applicants for promotion among the non-reserve officers of the Air Force.
The Federal Circuit held:
Congress has not spoken to the issue of whether the
selection board must conduct itself as a collective
body. The statutory provisions do not contain any
specific methodology that the selection board must use
in carrying out its deliberative process. In
addition, the parties direct us to nothing in the
legislative history that would reveal Congress' intent
with regard to these issues and we have found no
guidance in our review of the legislative history.
Given the facts before us, we also hold that the Air
Force's interpretation of the statute is a permissible
one. The statute does not require that a majority
determination be based on a knowing review and
conscientious consideration of each officer's record.
Nothing in the plain language of the statute requires
first-hand knowledge on the part of the deliberators
of an officer's record. All that is required is a
numerical showing that more than half of the board
members approved or disapproved of the matter before
them. The Air Force, like the other branches of the
military, is confronted with establishing a selection
process pursuant to statute that is fair in view of
the extensive number of individual officers who may be
eligible for consideration. A review of a selected
number of individuals by sub-panels who use common and
identifiable criteria is an efficacious and equitable
means to establish the final rankings that are in fact
approved by a majority of the members of the board.
This court is not in a position under Chevron to
impose its statutory construction for that of the Air
Force when it finds that the statutory construction
provided by the agency is a permissible one. In sum,
we agree with the trial court that "[t]here is . . .
no reason why the business of coming to a `majority'
consensus cannot be accomplished through collective
approval of the findings and recommendations of a
sub-group — i.e., a selection panel." [citation
omitted]. In addition, using the signing of the Board
Report as a means for the members to both express
their approval of the recommended candidates and make
the required certification is permissible under the
statutory scheme as well.
Small v. United States, 158 F.3d at 581.*fn2
Plaintiffs first argue that Small is distinguishable from this case.
They say that the language here — "A recommendation for promotion
must be made by the majority of the total membership of the board"
— more clearly indicates the requirement of collective action than
language in Small — "the officer receives the recommendation of a
majority of the members of the board." Compare 10 U.S.C. § 8362(e)
(repealed) with 10 U.S.C. § 616(c)(1). This is a distinction without
a difference. The key language in the statutes is identical; each
requires that the "recommendation" be made by the "majority" of the
selection board. For the purposes of plaintiffs' argument, the
requirements found in the two statutes are the same. The question
therefore is whether the Federal Circuit was correct in finding that "the
Air Force's interpretation of the statute is a permissible one." Small
v. United States, 158 F.3d at 581.
While this is a case that tests the bounds of deference under Chevron,
this Court concurs with the Federal Circuit. Although it is unlikely that
any member of Congress envisioned that the board would act in any way
other than as a collective body, Congress did not provide any direction
or guidance in the language of the statute — or even in the
legislative history — regarding the proper selection procedures the
Air Force must follow. It is not the Court's role to impose its
interpretation of the statute on the Air Force if the Air Force's own
interpretation is a permissible one under the statute. The fact is that
the statutes at issue "neither condemn nor condone the use of panels."
Small v. United States, 37 Fed.Cl. 149, 155 (Fed.Cl. 1997), affirmed,
158 F.3d 576 (Fed. Cir. 1998). Since the statutes do not establish, or
provide any guidance regarding, the proper selection procedures for the
Air Force to use, and because the Court must apply an "unusually
deferential application of the `arbitrary and capricious' standard" to
decisions of the military, Kreis v. Secretary of the Air Force, 866 F.2d
at 1514, the Court concludes that defendant's interpretation of the
statute is a permissible one.
C. Did The Board President Impermissibly Override The Voting
Plaintiffs also argue that the Air Force review process was arbitrary
and capricious and contrary to law because the Board President had the
power to impose his or her will on the members of the selection panel.*fn3
In particular, plaintiffs contend that under the review process, the
Board President had the ability to override the wishes of the voting
members because he could reject the scoring of one panel, have a second
panel score the candidate and then decide which score to use. Defendant
does not dispute that the Board President had this authority. Defendant
argues, however, that the final voting was done by the board and panel
members and not by the Board President, and that the Board President's
role was only one of "quality control."
Plaintiffs' argument regarding the Board President fails for the same
reasons as their earlier argument regarding the need for collective
action. Under defendant's interpretation of the statute, which this Court
has already found to be permissible, see supra at 7-8, it is the board
members' final consent to the promotion lists that constitutes the
recommendation of the majority of the board. The procedure used to arrive
at the final lists is irrelevant; it is the board's final consent to
those lists that is the legally operative event. The Board President's
ability to influence what score a candidate gets at an earlier juncture
therefore does not usurp the board's power to make the ultimate
D. Was Use Of The "Beyond A Reasonable Doubt" Standard
Arbitrary And Capricious?
Plaintiffs argue that the instructions provided to board members were
and capricious and contrary to law because they included an instruction
that the members must find "beyond a reasonable doubt" that a candidate
was "fully qualified" before voting to promote him or her. In
particular, prior to the selection process in Fiscal Years 1996 and 1997,
the board members were given the following instruction:
The board will use the fully qualified method of
selection. Fully qualified is a positive assessment.
Officers whose records do not indicate beyond a
reasonable doubt that they have the capacity and
ability to perform the duties of the next higher
grade, or that they possess the potential for a
successful career in the Reserve of the Air Force,
should not be found qualified.
A.R. at 194, 393 (emphasis added). While plaintiffs concede that the
statute is completely silent on the standard the Air Force should apply
in this process, they argue that "reasonable doubt" is a wholly
inappropriate and unreasonable standard because traditionally it is a
criminal standard of proof that has no place in the administrative review
of employees. Plaintiffs also maintain that the Air Force does not use
the "reasonable doubt" instruction any more, indicating that its earlier
use must have been arbitrary and capricious.
Plaintiffs further contend that the Air Force's guidance to board
members defining "fully qualified" was recently changed in a manner that
indicates the inappropriateness of the reasonable doubt standard.
Specifically, at one time the guidance required that the board recommend
for promotion "all eligible officers whose qualifications and performance
of duty, as determined by the majority of the board members [, c]learly
indicate that the officer would be capable of performing the duties
normally associated with the next higher grade." Plaintiff Eddie A.
Curtis' Cross-Motion, Appendix at 81 (emphasis added). When the guidance
was amended in 1996, the Air Force removed the adverb "clearly" so that
the guidance stated that the majority of the board members must find that
the officer's qualifications "indicate the officer is capable of
performing duty at the next higher grade." Id. at 104.
While plaintiffs' arguments may provide a valid policy argument for the
use of a different standard more appropriate to the administrative
process, the Court cannot conclude that the Air Force's interpretation is
impermissible. The statute is silent on the matter, allowing the Air
Force wide discretion regarding the degree of confidence it may require
in order to promote an applicant. Decisions on who should be in military
leadership positions, and what comfort level the decision-maker should
have regarding the qualifications of candidates for such positions,
should be left to the expertise of the military and not made by the
courts. See Kreis v. Secretary of the Air Force, 866 F.2d at 1514. In
view of the Air Force's experience in evaluating the leadership needs of
the armed forces, the Court will defer to the Air Force's conclusion that
use of the reasonable doubt standard was permissible.
E. Did The Board Impermissibly Apply A "Best Qualified"
Standard Instead Of The "Fully Qualified" Standard?
Plaintiffs' final argument is that the instructions given to the board
are so replete with comparative language that the board members must have
compared the candidates to determine who was "best qualified" — the
standard applicable to promotions among non-Reserve officers —
instead of looking at each candidate individually to determine if he or
she was "fully qualified." For example, before the selection process
began, the board members were instructed that they must "subjectively
assess each officer's relative potential" and that they would "be
comparing the records of officers . . . with other officers." A.R. at
76-77, 273-74. Because the "fully qualified" standard is supposed
to result in the promotion of all officers who are found to be capable of
performing at the next level, irrespective of an officer's abilities
relative to his or her peers, plaintiffs argue that the comparative
language of the instructions is contrary to the statutory directives.
See 10 U.S.C. § 8367(b) (repealed) (board should "recommend the
officers on that list who it considers fully qualified for promotion").
Plaintiffs' argument fails when the quoted language is placed in the
context of the entire set of instructions given to board members. All of
the quotations provided by plaintiffs come from the guidance on how the
board members should evaluate the candidates in the initial round of
scoring intended to rank the candidates. Comparative evaluations of
course are essential in order to rank any set of candidates. Once the
candidates were ranked, however, the panel members reviewed them under
the "fully qualified" standard. Under the Air Force's complex
procedures, the panel reviewed candidates as far down the list of ranked
candidates as it could to still find "fully qualified" candidates. The
Court therefore concludes that the Air Force's procedure to evaluate
candidates for promotion was not contrary to the statutory requirement
that it promote all "fully qualified" candidates.
F. Plaintiffs' Motion for Class Certification
Because the Court grants defendant's motion for summary judgment, it
will deny plaintiffs' motion for class certification as moot. There is no
reason to certify a class after the Court has already determined that the
class members would not be entitled to relief. See Bayshore Resources
Co. v. United States, 2 Cl.Ct. 625, 628 n. 1 (Cl.Ct. 1983) ("[T]he other
members of the [proposed] class should not be invited to board a sinking
An Order and Judgment consistent with this Opinion will be issued this
ORDER AND JUDGMENT
Upon consideration of the parties' cross-motions for summary judgment
and the oppositions and replies thereto, and having fully considered the
oral arguments ably presented by counsel, and for the reasons stated in
the Opinion filed this same day, it is hereby
ORDERED that defendant's motion for summary judgment is GRANTED; it is
FURTHER ORDERED that plaintiff Eddie A. Curtis' motion for summary
judgment is DENIED; it is
FURTHER ORDERED that plaintiff-intervenor J. David Carroll's motion for
summary judgment is DENIED; it is
FURTHER ORDERED that plaintiff Eddie A. Curtis' motion for class
certification is DENIED as moot; it is
FURTHER ORDERED that JUDGMENT is entered for defendant; it is
FURTHER ORDERED that this Order shall constitute a FINAL JUDGMENT in
this case; and it is
FURTHER ORDERED that this case is dismissed with prejudice from the
docket of this Court. This is a final appealable order. See Rule 4(a),