The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, a retired Florida Army National Guard ("FLARNG") officer, brings this action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (2000), seeking review of a decision issued by the Army Board for the Correction of Military Records ("ABCMR" or "Board") for alleged violations of the United States Constitution, United States military regulations, and federal statutory law. Complaint ("Compl.") at 1. The plaintiff requests that this Court order the Secretary of the Army to expunge from his military record all documents referencing a Department of the Army Inspector General ("DAIG") investigation and all documents related to the decision to withhold his name from placement on the Brigadier General Promotion List. Compl. at 34. The plaintiff also requests, among other things, that his name be restored to the Brigadier General Promotion List. Id. Currently before the Court is the Defendant's Motion to Dismiss, In Part, and for Summary Judgment [D.E. # 13] and the Plaintiff's Cross-Motion for Summary Judgment [D.E. # 17].*fn1 For the reasons discussed hereafter, the Court will grant the defendant's motion to dismiss and for summary judgment and deny the plaintiff's cross-motion for summary judgment.
On October 31, 1987, the plaintiff accepted an appointment to become a member of the FLARNG. Defendant's Statement of Material Facts Which Are Not in Genuine Dispute. ("Def.'s SOF") ¶ 4.*fn2 After five years of service the plaintiff was promoted to the rank of Lieutenant Colonel and was then promoted to the rank of Colonel on March 6, 1996. Id. In March of 1999, the plaintiff was selected by the Adjutant General ("AG") of the Florida National Guard ("FNG") to assume command of a FNG Major Command and to serve simultaneously as the Deputy Commanding General of the 32nd Army Air and Missile Defense Command ("AAMDC"), an active duty Army Headquarters. Id. ¶ 5. On July 27, 2000, the Secretary of Defense announced that the plaintiff had been selected for promotion to the rank of Brigadier General and his name was submitted by the President of the United States to the Senate for confirmation on September 13, 2000. Id. ¶ 7.
On September 28, 2000, before action on the nomination was taken by the Senate, the DAIG received a memorandum from the FLARNG's Inspector General ("IG") referring a complaint that had been made pursuant to the Military Whistleblower Protection Act ("MWP Act"), 10 U.S.C. § 1034 (2000), accusing the plaintiff "of taking reprisal actions against a subordinate for making protected disclosures to his chain of command regarding [purported] criminal activities." Id. ¶ 8. Colonel Appleby was notified by telephone by the FNG AG on October 3, 2000, that he was being removed from the general officer promotion list at the request of the DAIG based on the whistleblower complaint that had been filed against him.*fn3 Id. ¶ 9. Thereafter, on October 6, 2000, Colonel Appleby was notified again by telephone by the Deputy IG of the DAIG that based on the complaint his name had been withheld by the Army from the list of officers whose promotions were confirmed by the Senate in October 2000. Id. ¶ 10. Colonel Appleby was subsequently advised on January 16, 2001, by the FNG AG, that the reprisal allegation could not be substantiated. Id. ¶ 11. However, he was informed that the whistleblower investigation had revealed other issues and that the authority of the Vice Chief of Staff ("VCSA") was needed for these newly discovered matters to be further investigated. Id. And, on January 31, 2000, the VCSA directed the DAIG to investigate the improprieties allegedly committed by senior officials assigned to the 32nd AAMDC of the FLARNG. Id. ¶ 12. The DAIG Report of Investigation ("ROI"), which was issued on June 28, 2001, and approved by the VCSA on the same day, concluded that the plaintiff had failed to ensure that a subordinate commander was properly relieved from a command position, that he had improperly prepared and processed a favorable annual officer evaluation report ("OER") of that subordinate commander, and that he had taken reprisals against junior officers for making protected communications. Id. ¶ 13. Shortly after the ROI was issued, the plaintiff authored an email sometime around July 13, 2001, which he forwarded to 35 individuals, informing them of his decision to voluntarily retire from the FLARNG, effective July 31, 2001. Id. ¶ 14; Compl. at 5 ¶ 37. The email further explained that after the IG investigation was satisfactorily completed, Colonel Appleby understood that he would be eligible to have his name resubmitted to the Senate for confirmation of his nomination to the rank of Brigadier General, but that he had chosen not to go through the process again.*fn4 On July 31, 2001, Colonel Appleby was transferred to retired status in the United States Army Reserve Control Group because he had fulfilled his maximum authorized years of service. Def.'s SOF ¶ 15.
On October 19, 2001, the VCSA issued a Memorandum of Concern ("MOC") to the plaintiff indicating that he would not be officially reprimanded because the VCSA believed the plaintiff thought his actions it had investigated were in the best interest of his military unit. Id. ¶ 16. Nonetheless, the VCSA indicated that Colonel Appleby's actions did not meet the standards expected of a senior officer. Id. However, the MOC was not placed in the plaintiff's Official Military Personnel File and the matter was considered closed. Id.
On March 23, 2003, Colonel Appleby filed an application with the ABCMR requesting that the Board: (1) direct that he be promoted by operation of law to the rank of Brigadier General; (2) remove a Letter of Concern ("LOC") allegedly contained in his military personnel file; (3) award him all back pay, allowances, and benefits to which he is allegedly entitled; and (4) retire him at the rank of Brigadier General with all associated rights, benefits, and privileges or, alternatively, reinstate him to the FLANG at the rank of Brigadier General, along with crediting him with service at that rank from the date he otherwise would have been promoted to the date of his reinstatement. Id. ¶ 17; Compl. at 7 ¶ 51; Pl.'s Mem. at 6-7.
Before the ABCMR's decision was issued, the plaintiff was provided with an advisory opinion prepared by the National Guard Bureau General Officer Management Office. Pl.'s Mem. at 7 (citing Administrative Record ("Admin. R.") at 18-20). The advisory opinion concluded that the plaintiff's name had properly been withheld from the Brigadier General promotion list pursuant to Department of Defense ("DOD") regulations. Admin. R. at 7. However, the advisory opinion went on to state that Colonel Appleby's nomination should be forwarded to the Senate for confirmation consideration, and that if he is confirmed, his records be corrected to reflect his promotion to the rank of Brigadier General as of October 6, 2000, with a subsequent retirement date of July 31, 2000. Id. On August 11, 2005, the ABCMR rendered its final decision unanimously denying the plaintiff's requested relief. Def.'s SOF ¶ 18. The decision was announced in a written "record of proceedings," which concluded that the plaintiff had failed to present "satisfactory evidence of error or injustice to warrant relief." Id. (citing Admin. R. at 16); see also id. ¶ 19 (citing Admin. R. at 2-16).
The plaintiff filed his nine count complaint in this Court on February 3, 2006. Counts I, II and III allege that the DAIG lacked legal authority and jurisdiction to investigate the Military Whistleblower Protection Act complaint. Compl. at 14-21. Counts IV, V, and VI allege violations of 10 U.S.C. § 14311(2000) and Army Regulation 600-8-29 for delaying Colonel Appleby's promotion. Id. at 21-28. Count VIII alleges a violation of the plaintiff's right to due process resulting from the failure to provide him with proper and timely notice and therefore an opportunity to respond to the adverse information used against him. Id. at 31. Finally, Count IX alleges that Colonel Appleby's retirement was involuntary and therefore unlawful. Id. at 33. The defendant has moved to dismiss Counts I, II, III, and VIII pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or alternatively request summary judgment on all counts of the complaint. In return, the plaintiff has filed a cross-motion for summary judgment on all counts of the complaint.
A. Rule 12(b)(6) of the Federal Rules of Civil Procedure
To survive a motion to dismiss made pursuant to Rule 12(b)(6), a complaint need only provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (citing Fed. R. Civ. P. 8(a)). And, when reviewing such a motion, the court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). A motion to dismiss under Rule 12(b)(6) tests not whether a plaintiff will ultimately prevail on the merits, but only whether the plaintiff has properly stated a claim for which he is entitled to relief. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). Thus, a complaint should not be dismissed for failure to state a claim 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, 355 U.S. at 45-46. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. Equal Employment Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).
B. Rule 56 of the Federal Rules of Civil Procedure
This Court will grant a motion for summary judgment under Rule 56(c) if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, this Court must view the evidence in the light most favorable to the non-moving party. Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Under Rule 56, "if a party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial," summary judgment is warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id. In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
C. The Administrative Procedure Act
Pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2) (2000), "[j]udicial review of the final decision of a military correction board is limited to a determination of whether the board's decision 'is arbitrary and capricious, contrary to law, or unsupported by substantial evidence.'" Roberts v. Harvey, 441 F. Supp. 2d 111, 118 (D.D.C. 2006) (quoting Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997)); Calloway v. Brownlee, 366 F. Supp. 2d 43, 54 (D.D.C. 2005) (RBW). "[A] party seeking review of a board decision bears the burden of overcoming 'the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully and in good faith.'" Roberts, 441 F. Supp. 2d at 118 (quoting Frizelle, 111 F.3d at 177). "As a general matter, the scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency." Id. (internal quotations and citation omitted). Accordingly, a court "will not disturb the decision of an agency that has 'examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" Id. (quoting MD Pharm. v. Drug Enforcement Admin., 133 F.3d 8, 16 (D.C. Cir. 1998) (citations omitted).
"The requirement that agency action not be arbitrary and capricious includes a requirement that the agency adequately explain its result." Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995) (citing Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993); Fed. Election Comm'n v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986)). The arbitrary and capricious standard of the APA "mandat[es] that an agency take whatever steps it needs to provide an explanation that will enable the court to evaluate the agency's rationale at the time of decision." Id. (citation omitted). "This does not mean that an agency's decision must be a model of analytic precision to survive a challenge. A reviewing court will 'uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'" Id. (citations omitted). However, the explanation provided by the agency must, at a minimum, contain "a rational connection between the facts found and the choice made." Id. (citation omitted).
As the District of Columbia Circuit has recognized, the final decisions of military correction boards are reviewed under "an unusually deferential application of the 'arbitrary and capricious' standard." Kreis v. Sec'y Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (citations omitted); see also Roberts, 441 F. Supp. 2d at 119. "This high degree of deference arises from the statutory language authorizing a Secretary of a military department -- acting through civilian boards -- to correct military records 'when the Secretary considers it necessary to correct an error or remove an injustice.'" Roberts, id. (quoting 10 U.S.C. § 1552(a)(1)) (2000). In this regard, the Kreis court reasoned that:
It is simply more difficult to say that the Secretary has acted arbitrarily if he is authorized to act 'when he considers it necessary to correct an error or remove an injustice,' 10 U.S.C. § 1552(a) (emphasis added), than it is if he is required to act whenever a court determines that certain objective conditions are met, i.e., that there has been an error or injustice.
Kreis, 866 F.2d at 1514. While only the "most egregious" Board decisions will fail this deferential standard of review, a plaintiff can establish that the Board's decision-making process was flawed and in violation of the APA by showing that the Board did not consider or respond to an argument that did not appear to be "frivolous" on its face and could affect the Board's ultimate disposition." Roberts 441 F. Supp. 2d at 119 (quoting Frizelle, 111 F.3d at 177); see also Calloway, 366 F. Supp. 2d at 54.
A. The Defendant's Motion to Dismiss
The defendant moves to dismiss Counts I, II, III and VIII of the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state claims upon which relief can be granted. ...