The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
Document Nos.: 2, 8, 11, 13
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. ¶ 9.
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 women obtained drinks by sucking on the rhino phallus." *fn2 See Compl. ¶ 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.
The following year, the FY 1997 Major USMCR selection board chose Mr. Do yle for promotion to the grade of Major. See id. ¶ 47; Def.'s Statement at 2. The selection board had before it information indicating that the President removed Mr. Doyle's name from the previous year's selection board at the recommendation of the Secretary. See id. ¶ 48; Def.'s Statement at 2. Once again, the Commandant of the Marine Corps, General Krulak, recommended removal of Mr. Doyle's name from the selection board report. See id. ¶ 49; Def.'s Statement at 2. The Secretary of the Navy concurred and forwarded to the President the recommendation that Mr. Doyle's name be removed from the FY 1997 USMCR selection board report. See id. ¶ 50; Def.'s Statement at 3. The President followed the Secretary's recommendation. See id. ¶ 51; Def.'s Statement at 3. According to Mr. Doyle, the factual basis for his removal from the 1996 Major USMC and 1997 Major USMCR reports mirrored the information used by then-LTG Krulak when he served as the CDA and factfinder for the Tailhook cases. See id.
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 subseque ntly 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 ...