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Levant v. Roche

August 5, 2005


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff Michel Levant, Brigadier General (Ret.) in the United States Air Force Reserve, brings this action against Secretary James G. Roche, in his official capacity, and the Department of the United States Air Force, asserting claims pursuant to the federal Privacy Act, 5 U.S.C. § 552a, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., the federal Mandamus statute, 28 U.S.C. § 1361, and various constitutional provisions. Essentially, plaintiff contends that defendants improperly denied him a promotion to the rank of major general, and subsequently denied him access to documents that could help prove his claim.

Pending before the Court is defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Upon careful consideration of defendant's motion, the response and reply thereto, the governing statutory and case law, and the entire record, the Court is persuaded that the defendants are entitled to summary judgment and plaintiff's Complaint will be DISMISSED WITH PREJUDICE.


In October 1989, while plaintiff was serving in the grade of brigadier general in the Air Force Reserve, Lieutenant General Thomas J. Hickey, then Deputy Chief of Staff for Personnel at Air Force Headquarters, convened a Selection Board to consider sixteen candidates, including plaintiff, for promotion to the reserve grade of major general for the calendar year 1990. After evaluating the candidates' qualifications and producing a descending score roster ("DSR") that reflected each candidate's scored rank,*fn1 the Board ultimately decided to select the top five candidates for promotion to major general. See Administrative Record ("AR") 672, Report of the Proceedings of the Air Force Reserve General Officer Selection Board, Ex. C. Plaintiff, ranked seventh, was not among the names forwarded to the Secretary for promotion. Levant subsequently transferred to the Retired Reserve effective March 15, 1991.

In November 1991, plaintiff filed an application to the Air Force Board for Correction of Military Records ("AFBCMR")*fn2 requesting that his non-selection be voided, and seeking retroactive reinstatement to the active Air Force Reserve and correction of his records to reflect a grade of Major General. See AR 42. The Board denied plaintiff's request on April 6, 1993, finding that he had not presented sufficient evidence to "demonstrate the existence of probable error or injustice" regarding his non-selection. AR 37.

Plaintiff requested de novo consideration of his application on June 17, 1993. See AR 420. In July 1997, following several supplemental filings, the AFBCMR found that plaintiff's application and supplemental materials painted a "montage of suspicion in the applicant's favor for reconsideration." AR 20. Accordingly, the Board found it "in the interest of justice to afford the applicant a reevaluation of his record by a Special Review Board" ("SRB") comprised of military officers. Id. The SRB compared plaintiff's military record with benchmark records of the five selectees and five non-selectees to determine whether plaintiff should have been recommended for promotion by the original CY '90 Selection Board. See AR 1607-08, Special Review Board Procedures. Following this review, the SRB notified the AFBCMR that "in the opinion of a majority of the voting members, Michel Levant ... should not have been recommended for promotion to major general by the CY 90 Air Force Reserve General Officer Selection Board." AR 1599, Special Review Board Report.*fn3 On October 28, 1999, after considering submissions by plaintiff, advisory opinions from various Air Force offices, and the recommendation of the SRB, the AFBCMR denied plaintiff any relief, concluding that "[i]nsufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice warranting the applicant's promotion to the Reserve grade of major general." AR 8.

In an effort to support his application before the AFBCMR, plaintiff filed a number of requests for documents pursuant to the Freedom of Information Act ("FOIA") and the Privacy Act. Plaintiff's first document request was partially denied on July 29, 1992. AR 219. Specifically, defendants notified plaintiff that the requested documents were not maintained in a Privacy Act system of records; that records containing personal information of other officers, social security numbers, security clearance levels, age and age indicators, selection board scores, and eligibility information were withheld under FOIA exemption 5 U.S.C. § 552(b)(6) and Air Force Regulation 12-30, paragraph 10(f); and that "score sheets,"*fn4 pre-deliberative opinions, recommendations, board briefings, board reports, and other pertinent evaluation materials were withheld as pre-decisional, interagency memoranda under FOIA exemption 5 U.S.C. § 552(b)(5) and Air Force Regulation 12-30, paragraph 10(e). AR 219; see Consolidated Material Facts ¶ 22. The Air Force released certain additional records to plaintiff on April 14, 1993, but continued to withhold others for the reasons described above. AR 1517; see Consolidated Material Facts ¶ 23. Plaintiff filed a FOIA appeal on May 6, 1996, which was denied by letter dated April 4, 1997. Defs.' Mem. Ex 3; see Consolidated Material Facts ¶ 25. Plaintiff filed one final request for the descending score roster by letter dated November 4, 1999, which was denied by defendants on February 16, 2000. Defs.' Mem. Exhibits 6-7; see Consolidated Material Facts ¶ 26.

Plaintiff filed the instant action on April 12, 2002 seeking retroactive reinstatement or promotion to the rank of Major General and all related benefits; actual damages for defendants' alleged "intentional or willful" violations of the Privacy Act; disclosure of all records that establish Plaintiff's "right and entitlement" to retroactive promotion; and attorneys' fees and costs as allowed by applicable law. See Compl. ¶¶ 6-9.


A. Failure to State a Claim

The Court will not grant a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Accordingly, at this stage of the proceedings, the Court accepts as true all of the complaint's factual allegations. See Does v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276.

B. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be ...

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