The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;
DENYING THE PLAINTIFF'S MOTION FOR A STAY OF PROCEEDINGS;
DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
Arising out of events occurring during the Navy's 1991 Tailhook
Symposium in Las Vegas, this matter comes before the court on the
defendant's motion to dismiss or, in the alternative, for summary
judgment, and the plaintiff's motion to stay the proceedings or, in the
alternative, for cross-motion for summary judgment. William G. Doyle
("the plaintiff") seeks judicial review pursuant to the Administrative
Procedure Act ("APA"), 5 U.S.C. § 701 et seq., of the Navy's final
agency decision not to correct his Naval record in accordance with the
findings and recommendations of the unanimous Board for Correction of
Naval Records ("BCNR"). The plaintiff alleges that the Navy ("the
defendant"), acting through the Assistant Secretary of the Navy, Carolyn
H. Becraft ("Assistant Secretary"), arbitrarily and capriciously denied
him relief by refusing to correct his Naval records. The defendant argues
that the Assistant Secretary's decision was entirely reasonable. Because
the Assistant Secretary properly exercised her discretion in deciding
that although the Navy chose not to punish the plaintiff, it could
legitimately determine that he did not deserve a promotion, the court
grants the defendant's motion for summary judgment, denies the
plaintiff's motion for a stay of proceedings, and denies the plaintiff's
cross-motion for summary judgment.
Mr. Doyle is a former Marine Corps Captain, who was assigned to Marine
Fighter Photo Reconnaissance Squadron Three ("VMFP-3") from November 1986
to August 1990. See Compl. ¶ 6. VMFP-3 was known as the "Rhinos"
because of the extended nose of the F-4 aircraft. See id. ¶ 7. During
the 1991 Tailhook Symposium in Las Vegas, former officers assigned to
VMFP-3 planned a "Rhino Hospitality Suite" in the Hilton Hotel. See id.
On Saturday of the 1991 Tailhook Symposium, Mr. Doyle went to the
"Rhino Suite" and stayed there for the remainder of the evening. See id.
¶ 22. He acknowledges that during the evening, he served drinks from the
Rhino mural drink dispenser.*fn1 See id. ¶ 23; Def.'s Statement of
Material Facts as to Which There Is No Genuine Issue ("Def.'s Statement")
at 1. While Mr. Doyle served drinks from the Rhino dispenser, "several
drinks by sucking on the rhino phallus."*fn2 See Compl. 6 23; Def.'s
Statement at 1-2. "At some point, when women were drinking from the rhino
phallus, someone threw plaintiff a pen and told him to mark on the rhino
phallus `how far the woman was able to `deep throat' the dildo.'" Compl.
¶ 25; Def.'s Statement at 2. Mr. Doyle says he "did as he was
directed." Id. ¶ 25. He adds that he was not involved in and did not
observe the "gauntlet" and "did not observe any assaults on any women" at
the Tailhook Symposium. See id. ¶ 28.
As a result of his attendance at the 1991 Tailhook Symposium, the Navy
required Mr. Doyle to travel to Marine Corps Base Quantico, Virginia for
a review of his participation in the Tailhook activities by the
Consolidated Disposition Authority ("CDA"),*fn3 then-Lieutenant General
("LTG") Charles Krulak, U.S. Marine Corps ("USMC"). See id. ¶ 30. As
CDA, LTG Krulak reviewed the evidence concerning Mr. Doyle's attendance
at the Tailhook Symposium, heard Mr. Doyle explain his participation at
the Tailhook Symposium, and evaluated Mr. Doyle's credibility firsthand.
See id. ¶ 32. Based on the hearing, LTG Krulak "concluded that the
allegation [was] completely without merit and that no basis for imposing
punishment under Article 15, [Uniform Code of Military Justice ("UCMJ")],
exist[ed]. . ." Id. ¶ 33. The Navy notes that Mr. Doyle "was not
punished for this actions [sic] and was retained in the Marine Corps."
Def.'s Statement at 2. Furthermore, LTG Krulak recommended that the Navy
fully restore Mr. Doyle's promotion eligibility. See Compl. ¶ 34.
Several years later, the Fiscal Year ("FY") 1996 Marine Corps Major
selection board considered Mr. Doyle for promotion, and the Navy placed
him on the "best qualified" list for possible promotion. See id. ¶
38. Unaware of his conduct at Tailhook, the board selected Mr. Doyle for
promotion. See Def.'s Statement at 2. On September 22, 1995, the
Commandant of the Marine Corps, now-General Krulak, recommended that the
Secretary of the Navy advise the President of the United States to remove
Mr. Doyle's name from the selection list of officers selected for
promotion to the grade of Major. See Compl. ¶ 39; Def.'s Statement at
2. On October 10, 1995, the Secretary of the Navy made the same
recommendation to the President, and the President removed the
plaintiff's name from the Major USMC selection list. See Compl. ¶ 40;
Def.'s Statement at 2. On November 5, 1995, the President approved the
Secretary's recommendation and, as a result, the Navy did not promote
Mr. Doyle to Major. See Def.'s Statement at 2 (citing Administrative
Record ("AR") 5). The plaintiff resigned his commission in the regular
Marine Corps, but stayed in the U.S. Marine Corps Reserve ("USMCR"). See
Compl. ¶ 43-44; Def.'s Statement at 2.
Next, the defendant considered Mr. Doyle for promotion to Major via the
FY 1999 Major USMCR selection board. See id. ¶ 53. Mr. Doyle's Naval
record contained the reports of his name removal from the FY 1996 and FY
1997 selection boards and the FY 1999 board subsequently did not select
him. See id. As a result, on June 1, 1999, Mr. Doyle was involuntarily
discharged from the Marine Corps Reserve. See id. ¶ 54.
Meanwhile, on or about May 3, 1999, Mr. Doyle had filed an application
with the BCNR:
seeking amendment and correction of his Naval record
by removal of the documentation relating to the
removal from the report of the selection boards for FY
1996 and FY 1997 Major selection boards; removal of
the failure of selection on the FY 1999 USMCR
selection board; retroactive reinstatement to the
Marine Corps Reserve; and presentation of plaintiff's
record before the next Marine Corps Reserve Major
selection board as an officer who had never failed
selection for promotion.
Id. ¶ 55. As the defendant puts it, Mr. Doyle essentially argues that
because the Navy never punished him for his actions in the Rhino suite
during the Tailhook Symposium, the Navy should not have removed him from
the promotion reports and should have promoted him. See Def.'s Statement
at 3. Mr. Doyle also claims that the Navy unfairly denied him a promotion
to Major when it promoted another officer, who arranged for the hotel
suite where the behavior at issue occurred, to Colonel and allowed him to
retire. See AR 12.
On April 5, 2000, a three-member panel of the BCNR unanimously voted to
grant Mr. Doyle's application for Correction of Naval Record, and
recommended its decision to the Secretary of the Navy for corrective
action. See Compl. ¶ 56. After consideration of the recommendation of
the BCNR, on July 11, 2000, the Assistant Secretary rejected the BCNR's
recommendation and denied Mr. Doyle relief. See AR 12. The Assistant
Secretary noted that in Mr. Doyle's petition, he admitted that he
personally engaged in the conduct that formed the basis for ...