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HOMER v. ROCHE

October 22, 2002

ARTHUR R. HOMER, PLAINTIFF,
V.
JAMES G. ROCHE, SECRETARY OF THE AIR FORCE, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge

MEMORANDUM OPINION

Before the Court are plaintiff's motion for summary judgment and defendant's motion to dismiss, or in the alternative, for summary judgment. Plaintiff Arthur R. Homer invokes the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq., to challenge the Air Force's refusal to promote him to the rank of colonel. While the Court is without jurisdiction to grant plaintiff the main relief that he seeks — direct promotion — the Court may review the Air Force decisions at issue here under the familiar "arbitrary and capricious" standard and order relief short of promotion. See 10 U.S.C. § 628(g)(2); 5 U.S.C. § 706(2)(A). After engaging in such an evaluation, the Court finds that the Air Force has not provided an adequate explanation for its repeated decisions to deny plaintiff's bid for promotion. The Court is therefore unable to determine whether that decision was both reasonable and based on "substantial evidence." Accordingly, the case must be remanded in order to allow defendant to supply this heretofore missing rationale. On remand, the Air Force of course remains free to refuse to promote plaintiff once again, but this time will have to explain its actions.

BACKGROUND

Plaintiff is a Lieutenant Colonel ("Lt. Col.") in the United States Air Force on active duty serving as a chaplain. Between 1988 and 1991, he was stationed at Aviano Air Base, Italy. During this time period, he received four Officer Performance Reports ("OPRs")*fn1. The first three were authored by Colonel Raymond Greco. In March 1993, plaintiff requested that the Air Force's Officer Personnel Records Review Board ("OPRRB") remove two of the three OPRs written by Colonel Greco on grounds that the rater harbored a personal bias against plaintiff, which infected those OPRs, and caused them not to reflect accurately plaintiff's job performance. (Administrative Record ["A.R."] 13.) This request was granted and the offending OPRs were expunged from plaintiff's record. (A.R. 5.)

In July 1991, Plaintiff was reassigned from Aviano to Lowry Air Force Base. While at Lowry, he received three additional OPRs, two of which were written by Colonel Keith Lewis. In May 1995, plaintiff requested that two of the OPRs authored by Colonel Lewis be removed from his record and that his Performance Recommendation Form ("PRF") be replaced with a new one that changed his status from "Promote" to "Definitely Promote." (A.R. 44.) These requests were also granted, thus bringing the total number of OPRs expunged from his record to four.*fn2

Previously, in March 1995, plaintiff had been considered, but not selected, for a promotion to colonel by the Air Force's regularly constituted promotion board. (Compl. ¶ 7; A.R. 5.) After this denial, however, the Air Force convened a Special Selection Board ("SSB") in order to reevaluate plaintiff's bid for promotion. Under military law, the Secretary for the Air Force may convene an SSB where an officer is considered but not selected for promotion by a promotion board, and the Secretary determines that "the board did not have before it for its consideration material information." 10 U.S.C. § 628(b)(1)(B). This was so in plaintiff's case because of the four OPRs that had been expunged from his record.

Nevertheless, on July 31, 1995, the SSB denied plaintiff's promotion. (A.R. 5.) In 1996, plaintiff appealed that decision to the Air Force Board for Correction of Military Records ("the Board") and requested a direct promotion to colonel. (A.R. 4.) The Board found evidence of "probable error or injustice" with respect to plaintiff's PRF, noting that when plaintiff's application was considered by the SSB, the revised PRF listed a group size of one. That figure would connote that plaintiff had been given his "Definitely Promote" recommendation out of a candidate pool of one, rather than six, as his original (unrevised) PRF had indicated. To correct this error, the Board ordered that the form be amended to show a group size of six. While it took this action favorable to plaintiff, the Board declined to promote plaintiff directly. It reasoned as follows:

The applicant's situation, while unfortunate, in and of itself, does not warrant a direct promotion by this Board. We believe it must be noted that based on the limited number of promotion vacancies available for chaplains to colonel, the selection process is highly competitive and there is no guarantee the applicant would have been promoted under any circumstances. In view of the fact that the applicant did have two OPRs in the file documenting his performance as a lieutenant colonel, as well as all the performance reports documenting his earlier performance; the action of the ERAB to substitute a DP recommendation for the CY 95A selection board; and the action we propose to further correct the contested PRF to show he did not receive the DP recommendation in isolation, i.e., that his review group size was "6," it is our opinion that a duly constituted selection board would have at its disposal an adequate record to make a reasonable and fair determination concerning the applicant's potential to serve in the higher grade in retaliation to his peers. Based on the foregoing, we are not inclined to usurp the discretionary authority of a duly constituted selection board.

(A.R. 7.) Accordingly, a new SSB was convened in order to evaluate plaintiff's corrected record.

DISCUSSION

A. Jurisdiction and Standard of Review

Before addressing the merits, the Court must determine whether it has jurisdiction to hear this case at all. To this end, defendant relies on Kreis v. Secretary of the Air Force, 866 F.2d 1508 (D.C. Cir. 1989), to argue that challenges to military decisions not to promote officers are nonjusticiable in the federal courts. (Def.'s Opp. to Pl.'s Cross Motion for Summary Judgment, at 8.) This argument has only limited merit. To be sure, Kreis holds that a request for retroactive promotion "falls squarely within the realm of nonjusticiable military personnel decisions." 866 F.2d at 1511. Thus, the Court is powerless to act insofar as plaintiff asks that the Court order his promotion to the rank of colonel. The authority to make that decision lies exclusively with the Air Force. However, it does not follow that plaintiff's entire complaint must therefore be dismissed on jurisdictional grounds. Very recently, in late 2001, Congress amended the statute governing special selection boards to include a specific provision authorizing judicial review of SSB decisions. See Pub.L. No. 107-107, § 503(b) (Dec. 28, 2001). This provision allows a federal court to "review the action of a special selection board . . . or an action of the Secretary of the military department concerned on the report of such a board" and to "set aside" such action if the court finds that it was, inter alia, "arbitrary and capricious" or not "based on substantial evidence." 10 U.S.C. § 628(g)(2). While the Court does not read this statute as overruling Kreis' holding that claims for retroactive promotion are nonjusticiable, the enactment of § 628(g)(2) undoubtedly validates that portion of Kreis in which the D.C. Circuit concluded that challenges to military promotion decisions in which the plaintiff merely challenges the military's justification for its refusal to promote lie within the power of the federal courts to adjudicate. See 866 F.2d at 1511-12.

In this regard, the amendment clarified the law more than it changed it. For the standard adopted by § 628(g) largely echoes that found in the APA, on which cases such as Kreis had long relied as a basis for reviewing military personnel actions. See 866 F.2d 1514-15 (holding that in exercising its discretion in regard to promotion decisions, the military must "give a reason that a court can measure, albeit with due deference, against the arbitrary and capricious standard of the APA"); see also Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (noting that the application of that standard in the military context must be "unusually deferential"); Chandler v. United States Air Force, 255 F.3d 919, 920-21 (8th Cir. 2001); Roetenberg v. Sec'y of the Air Force, 73 F. Supp.2d 631, 636 (E.D.Va. 1999). Thus, the Court undoubtedly has jurisdiction to consider plaintiff's claims insofar as he seeks a remedy other than direct promotion to the rank of colonel. In conducting this inquiry, whether under ยง 628(g) or the APA, the Court is charged with evaluating the Air Force's explanations for refusing to promote plaintiff in order to ...


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