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Weingartner v. Wynne

March 28, 2007

NANCY E. WEINGARTNER, PLAINTIFF,
v.
MICHAEL WYNNE, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Plaintiff Nancy Weingartner ("Weingartner"), a Major in the United States Air Force Biomedical Services Corps, brings this action against Michael Wynne, Secretary of the Air Force ("the Secretary"),*fn1 alleging claims pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. ("APA"). Weingartner seeks judicial review of the decision of the Air Force Board for Correction of Military Records' ("the Board") denying her requests for revision of her performance records, and for direct promotion. Before the court are the Secretary's motion to dismiss or, in the alternative, for summary judgment [#7] and Weingartner's cross-motion for summary judgment [#13]. Upon consideration of these motions, the oppositions thereto, and the record of this case, the court concludes that the Secretary's motion must be granted and Weingartner's coss-motion must be denied.

I. BACKGROUND

At the time the complaint was filed in 2005, Weingartner was serving on active duty in the United States Air Force ("Air Force") at the grade of major. In 1998 and 1999, she was a licensed clinical social worker and served as Family Advocacy Element Counsel, 86th Medical Group, at the Ramstein Air Base in Germany. In April 1999, the Air Force prematurely removed Weingartner from her position and reassigned her as a Special Assistant to the 86th Support Group Commander at Kaiserslautern Military Community in Germany. Weingartner filed a complaint regarding the reassignment, initially with the Third Air Force Inspector General's office ("IG") at Ramstein Air Base on May 5, 1999, and a second complaint on September 25, 2000. The IG investigated Weingartner's complaints and found them to be unsubstantiated, with the exception of one claim of delayed and improper feedback, and determined that no further action needed to be taken. In 2001, Weingartner returned to the United States and began service at Moody Air Force Base in Georgia. During the time period of 1999--2002, the Lieutenant Colonel Selection Board considered Weingartner for promotion to the grade of lieutenant colonel, but ultimately did not select her for promotion during any of these years.

After not being selected for promotion, Weingartner filed an application with the Corrections Board on June 11, 2003, requesting changes to her performance records and for a promotion. On September 14, 2004, the Board denied Weingartner's application, indicating she had failed to present evidence demonstrating "the existence of probable material error or injustice" in her record. Administrative Record ("A.R.") at 18. The Board acknowledged in its report that there was a title error in Weingartner's performance records, which indicated that she served as "Sembach Community Services Coordinator," rather than as "Family Advocacy Element Counsel." A.R. at 16. However, the Board characterized the inaccurate title as a "harmless error" and denied further relief. A.R. at 18. Furthermore, the Air Force "acknowledge[d] that there was an error on the applicant's [performance record, but that it was] highly unlikely this error was the sole cause for her nonselection." Id. The Board saw no reason to correct the Air Force's records regarding Weingartner's non-selection for promotion. A.R. at 16.

II. ANALYSIS

Weingartner asserts that the Board's ruling was arbitrary, capricious, and "not based on substantial evidence based on the whole record." Weingartner seeks a remand to the Board for further review and explanation of its ruling.*fn2

A. Review of APA Claims

Final agency action is subject to judicial review under the APA. The Board is an "agency," see 5 U.S.C. § 701(b)(1) (defining "agency" to include "each authority of the Government"), and its decision is considered a final agency action for the purposes of this suit. See 5 U.S.C. § 704.*fn3 Thus, the court must defer to the Board's decision unless it is "arbitrary and capricious, contrary to law, or unsupported by substantial evidence." See Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997); Dickson, 68 F.3d at 1404 (D.C. Cir. 1995).

The Board's authorizing statute provides the agency with considerable discretion in determining whether to take corrective action with respect to an applicant's record. The Secretary, acting through the Board, "may correct any military record of that department when he considers it necessary to correct an error or remove an injustice," 10 U.S.C. § 1552(a) (emphasis added), not simply when such action is necessary to correct an error or remove an injustice. Kreis I, 866 F.2d at 1513 (noting that this scheme "exudes deference" to the Secretary and "substantially restrict[s] the authority of the reviewing court to upset the Secretary's determination"). Judicial review of the Board's decision requires the court "to determine only whether the Secretary's decision making process was deficient, not whether his decision was correct." Id. at 1511.*fn4

Thus, as with traditional review of administrative agency actions, the court will not disturb the decision so long as the deciding body "examine[d] the relevant data and articulate[d] a satsifactory explanation for its action, including a 'rational connection between the facts found and the choice made.'" Kreis v. Sec'y of the Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) ("Kreis III")(quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). Agency findings of fact are reviewed for "substantial evidence." JSG Trading Corp. v. Dep't of Agric., 235 F.3d 608, 611 (D.C. Cir. 2001) (substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion when taking into account whatever in the record fairly detracts from its weight" (internal quotation marks omitted)); FPL Energy Maine Hydro LLC v. F.E.R.C., 287 F.3d 1151, 1160 (D.C. Cir. 2002) ("The 'substantial evidence' standard requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence.").

Finally, though judicial review of military records-correction decisions incorporates the core "arbitrary or capricious" standard of traditional administrative law, such review involves an "unusually deferential application" of that standard. Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis I, 866 F.2d at 1514). "This deferential standard is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence." Id. (citing Orloff v. Willoughby, 345 U.S. 83, 94 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.")).*fn5

B. Application

1. The Board's Articulation of ...


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