United States District Court, D. Columbia
August 22, 2005.
DOUGLAS J. MUELLER, Plaintiff,
GORDON R. ENGLAND, and DEPARTMENT OF THE NAVY, Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION (August 19, 2005) [# 10, # 15]
Lieutenant Commander ("LCDR") Douglas Mueller, the plaintiff in
this action, is an active duty member of the Navy. He brings this
action against the Department of the Navy ("Navy") and Gordon
England, the Secretary of the Navy ("England" or "the
Secretary"), to correct his military record and to convene a
special selection board ("SSB"). In his complaint, LCDR Mueller
asks the Court to: (1) set aside two decisions by the Board for
Correction of Naval Records ("BCNR") because they violated the
Administrative Procedures Act ("APA"), (2) amend his military
record pursuant to the Privacy Act, and (3) set aside the
Secretary's decision not to convene a SSB pursuant to
10 U.S.C. § 628. Before the Court are Defendants' Motion to Dismiss and
Motion for Summary Judgment and Plaintiff's Cross-Motion for
Summary Judgment. For the following reasons, the Court GRANTS
Defendants' Motion for Summary Judgment and DENIES plaintiff's
Motion for Summary Judgment. ANALYSIS
Summary judgment is appropriate when the record before the
Court demonstrates "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); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In considering a summary
judgment motion, the Court will view the facts and all reasonable
inferences in a light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986); Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986). The moving party may support its motion by relying on
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits" to demonstrate
that there are no genuine issues of material fact. Fed.R. Civ.
P. 56(c). The nonmoving party may not rely solely on allegations
and conclusory statements to oppose summary judgment; instead,
"an adverse party's response, by affidavits or [otherwise,] must
set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e).
I. Privacy Act Claim (Count II)*fn1
The Privacy Act provides that an agency must maintain all
records used by it in making determinations about individuals
"with such accuracy, relevance, timeliness, and completeness as
is reasonably necessary to assure fairness to the individual in
determination." 5 U.S.C. § 552a(e)(5). The Court's review under
this provision is de novo. Id. § 552a(g)(2)(A); see also White v. OPM,
787 F.2d 660, 662 (D.C. Cir. 1986).
The Secretary of Navy Instructions ("Navy
Instructions")*fn2 require that an individual's record must
be "accurate, relevant, timely, complete, and necessary."
32 C.F.R. § 701.110(e). An individual may request an amendment to
correct factual matters, but "not matters of opinion (i.e.,
information contained in evaluations of promotion potential or
performance appraisals)." Id. § 701.110(a). Thus, the initial
issue before this Court is whether the inclusion of the original
fitness report signed by Rear Admiral ("RADM") Weiss on November
16, 1999 ("original fitness report") in LCDR Mueller's file
renders his naval record "inaccurate."
Pursuant to the Navy Instructions, naval records are accurate
if they are factually accurate. 32 C.F.R. § 701.105(b)(1). On
March 7, 2002, RADM Weiss, LCDR Mueller's reporting senior during
the relevant time period, submitted a memorandum entitled
"Supplemental Fitness Report," which indicated that "[o]n
reflection, the marks I assigned on the original report when
compared to the recorded comments on LCDR Mueller's performance
and my recollection of the officer's performance were harsher
than required." R. at 9. After the Fiscal Year 2002 commander
promotion board denied LCDR Mueller a promotion, RADM Weiss
submitted a statement to the Secretary of the Navy, which stated
that he submitted the amended fitness report "based upon new
information . . . [, which] convinced [him] that the contested
original fitness report was inaccurate and needed to be corrected." R. at 109. The only
changes on the amended report, however, were increased
performance trait classifications. R. at 11-14. Nothing in RADM
Weiss's statement, submitted contemporaneously with the amended
report, indicates that new facts were the basis of his
amendments. See R. at 9-10. Therefore, the Court is unaware of
any new facts that RADM Weiss relied on to amend the performance
traits he attributed to LCDR Mueller and is not convinced that
the performance traits originally assigned to LCDR Mueller were
based on inaccurate facts.
Moreover, the Court finds that the performance traits that were
the basis of the Supplemental Fitness Report fit clearly within
the matters of opinion that may not be amended pursuant to Navy
Instructions. 32 C.F.R. § 701.110(a). And, although "[a]n agency
may not refuse a request to revise or expunge prior professional
judgments once all the facts underlying such judgments have been
thoroughly discredited," R.R. v. Dep't of the Army,
482 F. Supp. 770, 774 (D.D.C. 1980), there are no facts that have been
discredited in this record.
Under the Privacy Act, the Court must review the record to
"eliminate clear mistakes of fact, inaccurate opinions based
solely upon such erroneous facts, and plainly irresponsible
judgments of performance or character." Hewitt v. Grabicki,
794 F.2d 1373, 1378 (9th Cir. 1986). Where the plaintiff fails to
"attack with particularity the accuracy of the purely factual
incidents related to those comments so as to reveal a genuine
dispute of fact . . . there is no demonstration of a substantial
controversy regarding factual assertions or historical fact
statements." Id. at 1379. Here, LCDR Mueller has not specifically identified any incorrect facts that formed the
basis of RADM Weiss's opinion relating to his performance traits.
Accordingly, the Court finds that the defendants are entitled to
judgment as a matter of law because the agency has not violated
the Privacy Act by refusing to amend LCDR Mueller's naval record.
II. APA Claim (Count I)
Judicial review of an administrative agency's decision is
authorized by the APA. 5 U.S.C. §§ 701-706. Under the APA, this
Court may only set aside agency action that is "arbitrary,
capricious, an abuse of discretion or otherwise not in accordance
with law." 5 U.S.C. § 706(2)(A). Our Circuit has found that when
reviewing decisions regarding the correction of military records
pursuant to 10 U.S.C. § 1552, the Secretary "must give a reason
that a court can measure, albeit with all due deference, against
the `arbitrary or capricious' standard of the APA." Kreis v.
Secretary of the Air Force, 866 F.2d 1508, 1514-15 (D.C. Cir.
1989). The plaintiff bears the burden of establishing that the
agency's action violated the APA "by providing cogent and clearly
convincing evidence." Stem v. England, 191 F. Supp. 2d 1, 3
(D.D.C. 2001). Moreover, the plaintiff must "overcome the
presumption that military administrators discharge their duties
correctly, lawfully, and in good faith." Id. (internal
quotation marks omitted).
In this case, LCDR Mueller challenges the BCNR's decisions from
the sessions dated January 16, 2003 and July 29, 2004. On January
21, 2003, the BCNR notified LCDR Mueller that his request to
correct his naval record was denied because "[t]hey were unable
to find specific information to justify the reporting senior's
revision of your evaluation." R. at 102. Similarly, on August 2, 2004, the BNCR
notified LCDR Mueller that it did not reconsider his request to
replace the original fitness report with the supplemental report
because "you have provided no new and material evidence or other
matter not previously considered. The report senior's letter of
16 October 2003 gives no specific information to explain his
decision to give you a more favorable evaluation." R. at 29.
LCDR Mueller argues that the BCNR decisions are arbitrary and
capricious and contrary to law because the Navy "failed to follow
[its] own recordkeeping standards." Pl. Opp'n at 25. As discussed
above, this Court finds that the Navy did not violate the Privacy
Act. Moreover, the BCNR decisions provide the Court with a
sufficient basis to determine that the decisions do not violate
the APA. Accordingly, the defendants are entitled to judgment as
a matter of law on the APA claim.*fn3 CONCLUSION
For the foregoing reasons, the Court grants defendants' motion
for summary judgment and denies plaintiff's motion for summary
judgment. An order consistent with this decision accompanies this
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