The opinion of the court was delivered by: Urbina, District Judge.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
The plaintiff, Jack Stem ("the plaintiff"), brings this action
against the Secretary of the Navy ("the defendant"), alleging
that the decision made by the Board for Correction of Naval
Records ("BCNR") is contrary to law, arbitrary and capricious,
an abuse of discretion, and not supported by substantial
evidence. Before the court is the defendant's motion for summary
judgment and the plaintiffs cross-motion for summary judgment.
Upon consideration of the parties' submissions and the relevant
law, the court will grant the defendant's motion and deny the
On February 23, 2000, Captain Robert H. Wood (U.S.Navy,
Retired), the author of the two fitness reports mentioned above,
sent a letter to the president of the FY 2001 selection board.
See Admin. File at 18. In that letter, Captain Wood explained
his philosophy in rating the officers in his command. See id.
His goal was "to try and give deserving officers the opportunity
to finish at or near, the top [of the rating scale] before they
detached." See id. Captain Wood also wrote:
[h]ad I remained on active duty, I would have ranked
Jack [Stem] my number one officer on the next fitness
cycle. Also, had I not taken into consideration
Jack's relative experience and `juniority,' but only
considered his stellar achievements and demonstrated
leadership ability, I would have ranked him
significantly higher earlier in his tour.
Id. In addition to his non-selection in FY 2000, the plaintiff
was not selected for promotion by the FY 2001 selection board.
See Compl. ¶ 5.
By way of procedural history in the case, following the
decision rendered by the FY 2001 selection board, the plaintiff
applied to BCNR for correction of his personnel record on
October 24, 2000. See id. ¶ 10. The plaintiff sought to have
the two fitness reports referred back to the author for
correction. See Admin. File at 7. The plaintiff claimed that
Captain Wood improperly lowered his evaluation of the plaintiff
and that the letter demonstrates Captain Wood's evaluation of
officers based on a system of "progressively-higher evaluations
as time elapses based upon relative seniority of the officers
under evaluation." See id. at 10. The plaintiff attempted to
have BCNR set aside the FY 2000 and FY 2001 selection boards'
determinations regarding his non-selection for promotion and to
have his record referred, after having been corrected, to a
Special Selection Board to reconsider the plaintiff for
promotion to Commander. See Admin. File at 7.
On March 28, 2001, the Executive Director of BCNR informed the
plaintiff that BCNR had considered the plaintiffs application
for correction of his records, and that BCNR had decided that it
would take no action. See Admin. File at 1. Specifically, BCNR
"found no authority for [the plaintiffs] counsel's proposition
that [the plaintiffs] reporting senior could not properly
consider [the plaintiffs] experience and seniority in ranking
[the plaintiff]." See id.
On April 19, 2001, the plaintiff filed his complaint with this
court against the Secretary of the Navy, alleging that BCNR's
decision was "contrary to law, arbitrary and capricious, an
abuse of discretion, and not supported by substantial evidence."
See Compl. ¶ 15. In the complaint, the plaintiff requests that
the court grant him equitable relief from BCNR's decision by
issuing a judgment reversing BCNR's decision, directing that the
fitness reports be referred back to their author for correction,
voiding the plaintiffs "pass[-]overs" for promotion to
Commander, and requiring the plaintiffs corrected record to be
referred to a special selection board to reconsider the
plaintiff for FY 2000 and FY 2001 board action. See id. at 5.
The defendant filed a motion for summary judgment on August 6,
2001. On September 4, 2001, the plaintiff filed a cross-motion
for summary judgment. These motions are now before the court.
For the reasons that follow, the court will deny the plaintiffs
cross-motion for ...