performance of duty. Captain Wood's letter explains that he took
both of these factors into account, but that if he had only
focused on the positive factors of the plaintiffs performance,
he would have ranked him "significantly higher." See Admin.
File at 18. The paragraph cited by the plaintiff does not
require a rating officer to take into account only those factors
that reflect favorably on the rated officer. To wit, any
evaluation philosophy that did so would seem unreasonable on its
face. Without an explicit exclusion of lack of experience and
"juniority" as permissible factors in determining an officer's
"fitness for the service and performance of duties," this court
cannot find the BCNR decision contrary to law. See Auer v.
Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79
(1997) (holding that an agency's interpretation of its own
regulations is controlling unless "plainly erroneous or
inconsistent with the regulation").
The remaining passages cited by the plaintiff serve his
argument no better. The plaintiff cites paragraphs 1-2, 5, 9,
10b, and 11 of Enclosure (1), and pages A-8, A-10, and A-12 of
Enclosure 2. See Pl.'s Cross-Mot. For Summ. J. at 5. While
these pages and paragraphs mention the role of performance in
preparing an officer's fitness report, they do not discuss how
relative inexperience and "juniority" should be taken into
account when judging this performance. As stated directly above,
common sense dictates that an officer is required to consider
every aspect of a rated officer's performance, both positive and
negative, when preparing an officer's fitness report. Without an
explicit prohibition on the consideration of lack of experience
and "juniority," this court draws the same conclusion as noted
earlier, that the BCNR decision is not contrary to law. See
Auer, 519 U.S. at 461, 117 S.Ct. 905.
The issue remaining is whether the BCNR decision was
arbitrary, capricious, or an abuse of discretion. See
5 U.S.C. § 706(2)(A). While the plaintiff states that this is the case,
he fails to provide support for this portion of his argument.
See Pl's Cross-Mot. for Summ. J. at 4. Although the plaintiff
argues that Captain Wood's evaluations were arbitrary, the court
is not reviewing Captain Wood's performance. See id. at 7.
This court must limit its review to the BCNR decision. See
generally Frizelle v. Slater, 111 F.3d 172, 176-77 (D.C.Cir.
1997) (limiting court review to the agency's decision and not
the underlying disputed personnel reports). Prior to making its
decision, BCNR solicited opinions from Head of the Performance
Evaluation Branch of the Navy Personnel Command and the
Director, Officer Promotions, Appointments and Enlisted
Advancements Branch of the Navy Personnel Command, both of whom
found no fault with the fitness reports in question. See
Admin. File at 19-21. This solicitation of opinions demonstrates
that BCNR considered relevant factors in arriving at its
decision and the court cannot discern a clear error in BCNR's
application of Navy regulations, as permissibly interpreted.
Further, the plaintiff does not point to any procedural error by
BCNR, nor does he list any previous BCNR decision which
contradicts BCNR's decision in the present case. Without these,
the court cannot justifiably conclude that BCNR's decision is
arbitrary, capricious, or an abuse of discretion. See Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91
S.Ct. 814, 28 L.Ed.2d 136 (reasoning that for a court to rule
that an agency decision is arbitrary and capricious, the court
must consider whether the decision was based on a "consideration
of the relevant factors and whether there has been a clear error
2. The Court Grants The Defendant's Motion for Summary
The court now turns to the defendant's motion for summary
judgment. In deciding the defendant's motion, the court borrows
much of the same analysis used in reaching its decision as to
the plaintiffs motion above. To determine whether the plaintiff
has advanced a case that will survive summary judgment, this
court must draw all justifiable inferences in favor of the
plaintiff. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
However, "the mere existence of a scintilla of evidence" in
support of the plaintiffs case is insufficient to prevent the
court from ruling in favor of the defendant. See id. at 252,
106 S.Ct. 2505.
Applying these principles to the case at bar, the plaintiff
has not provided any evidence that would allow the court to draw
a justifiable inference in his favor. See id. at 255, 106
S.Ct. 2505. This court may not infer that Captain Wood failed to
take the plaintiff's stellar achievements and demonstrated
leadership ability into account, when the evidence clearly
indicates that he did, in fact, consider these factors. See
Admin. File at 14-17 (reproducing the plaintiffs fitness
Further, this court may not justifiably infer that BCNR's
decision that Captain Wood could take the plaintiffs lack of
experience into account is contrary to law, merely because the
plaintiff has provided the court with regulations requiring
Captain Wood to rate the plaintiffs performance. See Auer, 519
U.S. at 461, 117 S.Ct. 905. As discussed herein, an officer's
lack of experience could directly impact his performance.
Finally, as noted previously, the plaintiff has not provided the
court with any facts that would allow it to find that the BCNR
decision was arbitrary, capricious or an abuse of discretion.
See 5 U.S.C. § 706(2)(A).
Therefore, because the plaintiff has not provided this court
with any evidence from which it may justifiably infer the BCNR
decision to be contrary to law, arbitrary, capricious, or an
abuse of discretion, the court grants the defendant's motion for
summary judgment. See id.
For the foregoing reasons, the court grants the defendant's
motion for summary judgment and denies the plaintiffs
cross-motion for summary judgment. An Order consistent with this
Memorandum Opinion is separately and contemporaneously issued
and executed this 29th day of October 2001.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY
For the reasons stated in this court's Memorandum Opinion
separately and contemporaneously issued,