the defendant filed a motion to dismiss or, in the alternative, for
summary judgment, stating that no genuine issue of material fact exists,
and that the decision by the Assistant Secretary not to grant Mr. Doyle
relief was not arbitrary or capricious. On September 17, 2001, Mr. Doyle
filed a motion to stay proceedings pending submission of a complete
administrative record for consideration by the court, and a cross-motion
for summary judgment.
A. Legal Standard
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are "material," a court must
look to the substantive law on which each claim rests. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. See Celotex, 477 U.S. at
322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. A
nonmoving party, however, must establish more than "the mere existence of
a scintilla of evidence" in support of its position. See id. at 252. To
prevail on a motion for summary judgment, the moving party must show that
the nonmoving party "fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial." See Celotex, 477
U.S. at 322. By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather,
the nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. See Greene, 164 F.3d at 675. If the
evidence "is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50 (internal
B. The Scope of Review
Since this case involves a challenge to a final administrative action,
the court's review is limited to the administrative record. See Fund for
Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (citing Camp v.
Pitts, 411 U.S. 138, 142 (1973)). "Summary judgment is an appropriate
procedure for resolving a challenge to a federal agency's administrative
decision when review is based upon the administrative record." Id.
(citing Richards v. I.N.S., 554 F.2d 1173, 1177 n. 28 (D.C. Cir. 1977).
Courts must review a decision regarding the correction of military
records under the APA to determine if the decision was "arbitrary or
capricious" or not based on substantial evidence. See 5 U.S.C. § 706;
Chappell v. Wallace, 462 U.S. 296, 303 (1983).
As the Supreme Court has explained, "[t]he scope of review under the
`arbitrary and capricious' standard is narrow and a court is not to
substitute its judgment for that of the agency." Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In
reviewing the action of an agency under 5 U.S.C. § 706(2)(A), the
court must determine whether the agency has examined the relevant data
and articulated a satisfactory explanation for its action. See id. "In
thoroughly reviewing the agency's actions, the court considers whether
the agency acted within the scope of its legal authority, whether the
agency has explained its decision, whether the facts on which the agency
purports to have relied have some basis in the record, and whether the
agency considered the relevant factors." Fund for Animals, 903 F. Supp.
at 105 (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378
(1989)). In addition, the plaintiff has the burden of showing "by cogent
and clearly convincing evidence" that the decision was the result of a
material legal error or injustice. See McDougall v. Widnall,
20 F. Supp.2d 78, 82 (D.D.C. 1998) (internal citations omitted). In the
absence of clear and persuasive evidence to the contrary, courts should
presume that the Secretary and selection boards performed fairly and
lawfully. See Boyd v. United States, 1975 WL 22807 *4 (Ct.Cl.).
C. The Secretary's Actions Were Not Arbitrary or Capricious
In this case, the plaintiff claims that the defendant, acting through
the Assistant Secretary of the Navy, acted arbitrarily and capriciously
when the defendant denied the plaintiff relief based on false assertions
of fact that were contrary to findings, and based on unsupported
evidence. See Compl. ¶ 59, 61; Pl.'s Opp'n to Mot. to Dismiss & Mem. in
Supp. of Pl.'s Cross-Mot. for Summ. J ("Pl.'s Opp'n") at 11-17. The
court concludes that the plaintiff has failed to meet his burden of
showing by cogent and clearly convincing evidence that the decision was
the result of a material legal error or injustice. See McDougall, 20 F.
Supp.2d at 82. In short, the court concludes that the Assistant Secretary
acted within her scope of authority in making her decision, explained her
decision, and relied on facts supported in the record.
The plaintiff charges that the Assistant Secretary's decision was
arbitrary since it was "contrary to the evidence before the BCNR." See
Compl. ¶ 63. This claim lacks merit. The Secretary of a military
department, under procedures established by that Secretary and approved
by the Secretary of Defense, and acting through boards of civilians of
the executive part of that military department, may correct any military
record of that department when the Secretary considers it necessary to
correct an error or remove injustice. See 10 U.S.C. § 1552(a)(1);
Miller v. Lehman, 801 F.2d 492, 496-97 (D.C. Cir. 1986). The D.C. Circuit
has held that although 10 U.S.C. § 1552(a) directs the Secretary to
act through a civilian board, "it leaves no doubt that the final decision
is to be made by him." See Miller, 801 F.2d at 497. The statute confers a
certain amount of discretion on the Secretary, including the discretion
to differ with a board's recommendations where the evidence is
susceptible to varying interpretations. Boyd, 1975 WL 22807 *4.
In addition, the plaintiff attacks the substance of the Assistant
Secretary's decision to deny relief. See Pl.'s Opp'n at 13-17. The
Assistant Secretary gave a reasonable explanation for her decision to
reject the BCNR's recommendation. See AR 12. The record indicates that
Secretary considered the entire BCNR report and record prior to making
her decision. See id. The Assistant Secretary then offered legitimate
explanations for her decision to reject the BCNR's recommendation:
namely, that the plaintiff admitted to egregious behavior that "clearly
established his unfitness for promotion"; that no evidence existed that
the other officer cited by the BCNR was personally engaged in the same
behavior as the plaintiff during the Tailhook Symposium; and that, even
if the other officer's behavior had been similar to the plaintiff's, "the
fact that another officer may have avoided the full measure of
accountability for his behavior at Tailhook does not make it unfair or
unjust for the Secretary to take entirely appropriate actions to assess
accountability in this case or others." See AR 12. Rather than being the
result of a material legal error, the court concludes that the Assistant
Secretary's decision to reject the BCNR's recommendation was within her
sound discretion and in keeping with the applicable standard. Indeed, the
record reflects that the Assistant Secretary has examined the relevant
data and has articulated a reasonable explanation for rejecting the
BCNR's recommendation. See Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43.
Moreover, the record provides no evidence that the Assistant Secretary's
decision was arbitrary or capricious. See 5 U.S.C. § 706.
Finally, the plaintiff claims that the Assistant Secretary based her
decision on alleged false assertions of fact that were contrary to
findings of fact made previously by then-LTG Krulak, as the CDA,
regarding the investigation into the plaintiff's Tailhook activities. See
Compl. ¶ 59. General Krulak himself, however, offers a legitimate,
reasonable, and thoughtful explanation for his views:
As the CDA, I determined that there was no violation
of the UCMJ by Captain Doyle and elected not to take
judicial action. I believe that action was correct. As
the Commandant of the Marine Corps, I look at the
totality of Captain Doyle's conduct at the 1991
Tailhook symposium through a different lens and find
his conduct not representative of the high standards
and moral repute the nation expects in her Marine
officers. Accordingly, I cannot support his promotion
to the grade of major.
AR 44. General Krulak plausibly distinguishes between punishment and
promotion, and such a rationale is reasonable. See Nation v. Dalton,
107 F. Supp.2d 37, 47 (D.D.C. 2000) (deciding whether to punish a service
member for misconduct by removing her from service and deciding whether
to remove her from a promotion list "present entirely distinct
inquiries"). In sum, the complete record was available to the Assistant
Secretary at the time of her review, including the plaintiff's
arguments, the response from Marine Corps headquarters, and the
Commandant's explanation, and the Assistant Secretary's decision was
thoroughly justified. See AR 68. The court holds that the Assistant
Secretary's decision was neither arbitrary nor capricious and that the
record amply supports her determination. See 5 U.S.C. § 706; Marsh,
490 U.S. at 378. Accordingly, the court grants the defendant's motion for
summary judgment, denies the plaintiff's motion to stay the proceedings
pending submission of a complete administrative record, and denies the
plaintiff's cross-motion for summary judgment.
For all these reasons, 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. An order directing the parties in a manner
consistent with this Memorandum Opinion is separately and
contemporaneously issued this ___ day of March, 2002.
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
For the reasons set forth in the court's Memorandum Opinion issued
separately and contemporaneously this ___ day of March, 2002, it is
ORDERED that the defendant's motion for summary judgment is GRANTED; and
FURTHER ORDERED that the plaintiff's motion to stay the proceedings
pending a submission of the complete administrative record is DENIED; and
ORDERED that the plaintiff's cross-motion for summary judgment is DENIED.