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Epstein v. Geren

March 25, 2008


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 7, 18




This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff, a retired United States Army Reserve Lieutenant Colonel ("LTC"), brings suit under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702 et seq., alleging that the Army Board for Correction of Military Records ("ABCMR" or "the board") acted arbitrarily and capriciously and unsupported by substantial evidence when it declined to strike an adverse Officer Evaluation Report ("OER") for the period October 22, 1990 to March 5, 1991 from his personnel file. The plaintiff apparently brings the action on a point of honor, for he requests no monetary relief, backpay or retroactive promotion, but merely the removal of the OER from his record, alleging that his rating officer evaluated him negatively based on anti-semitic prejudice.*fn1

The defendant, Acting Secretary of the Army Pete Geren, maintains that the ABCMR thoroughly reviewed the plaintiff's application and acted reasonably and lawfully in denying his request. Both parties agree that no genuine issue of material fact impedes the court from resolving the plaintiff's claims as a matter of law.

The court cannot review the procedural regularity or evidentiary sufficiency of an opinion that does not opine on dispositive legal questions. Having reviewed the administrative record, the court concludes that the ABCMR failed to address two key arguments raised in the plaintiff's petition -- namely, whether the Army mischaracterized the plaintiff's OER as a change-of-duty rather than a relief-for-cause report and whether, consequently, the Army denied the plaintiff due process protections. However, on the question of whether the plaintiff's rater was qualified to evaluate him, the court concludes that the ABCMR fully considered the issue and reached a decision based on substantial evidence and not arbitrary, capricious or contrary to law. Thus, the court grants in part summary judgment for the plaintiff on the due process arguments raised but not considered or discussed by the ABCMR. Correlatively, the court grants in part summary judgment for the defendant on the question of the eligibility of LTC Hudson to rate the plaintiff. Accordingly, the court orders that this case be remanded to the ABCMR with instructions that the board clearly articulate its reasoning and conclusions on the limited issues referred.


The following facts are undisputed. The plaintiff was commissioned into the Army Reserve on June 6, 1969. Def.'s Mot. for Summ. J., Def.'s Statement of Material Facts ("Def.'s Statement") ¶ 1. On July 1990, he was activated and served for 16 days in the Special Security Command as a detachment commander of a Sensitive Compartmented Information Facility under LTC Hudson and Colonel ("COL") Cromartie. Id. ¶ 3; Pl.'s Mot. for Summ. J., Pl.'s Statement of Opposing Material Facts ("Pl.'s Statement") ¶ 3.1. Serving as the plaintiff's OER*fn2 raters appraising his performance, Hudson and Cromartie gave him the highest possible evaluation for promotion potential. Def.'s Statement ¶ 4; Pl.'s Statement ¶ 4.1. Indeed, during his entire career in the Army, the plaintiff received 16 OERs, 10 of which deemed his performance as above average, 5 as average, and only 1 (the subject of the instant complaint) as below average. Pl.'s Statement ¶ 4.2. On October 22, 1990, the Army activated the plaintiff for a 6-month tour of duty, assigned to the same group but now acting as a deputy commander. Id. ¶ 5.1.

Shortly after the 1990 holiday season, the plaintiff wrote a letter to the "Deputy J2"*fn3 stating that the command's annual Christmas party was "centered totally on Christian values" and recommending that other faith traditions be recognized. Id. ¶ 5.3. Around this time, LTC Hudson, the plaintiff's commander, began making derogatory jokes about the plaintiff's Jewish heritage, ethnicity and dietary habits. Pl.'s Statement ¶¶ 5.4. On January 18, 1991, Hudson, who also served as the plaintiff's rater, counseled him in writing that his conduct was not in the interests of "order, sound judgment, and good discipline," ordering him to cease and desist his behavior immediately and threatening to terminate his active duty and relieve him for cause should he fail to obey. Def.'s Statement ¶ 6. Sometime in January 1991*fn4 , the plaintiff initiated an Equal Opportunity ("EO") complaint against Hudson, alleging ethnic and religious insensitivity and racially discriminatory practices. Id. ¶ 7. As a consequence, the Army performed an informal inquiry to determine whether the allegations were merited. Def.'s Statement ¶ 8. On February 16, 1991, the plaintiff's active duty was extended for an additional six months. Id. ¶ 9. On March 4, 1991, the informal EO investigation concluded. Id. ¶ 10. The investigating officer reported that: the [plaintiff] was not experienced in higher level staff work, that several of his actions were inappropriate and did reflect negatively on the chain of command, that he became defensive and attributed his rater's counseling as being motivated by professional jealousy and ethnic racial/prejudice, that the rater was correct in questioning the [plaintiff's] competence and in not trusting him with important actions, that there was no evidence that the rater's counseling of the applicant's performance was based on anything other than professional experience and judgment, that the rater had made inappropriate remarks about the [plaintiff's] religious dietary habits; however, they had first been initiated by the applicant and not the rater and were stopped when the applicant brought it to the rater's attention, that the applicant was not loyal to his commander (rater) and his actions were disruptive to the command . . . . The applicant also suggested that he was better suited to command than was the rater.

Def.'s Statement ¶ 11; Admin. Record ("AR") at 5. The investigator recommended that Hudson be counseled concerning his remarks and that the plaintiff be reassigned or released from active duty. AR at 5.

On March 5, 1991, Hudson transferred the plaintiff to a new position outside of his command. Def.'s Statement ¶ 13. On April 1, 1991, Hudson was issued a letter of admonishment, cautioning him to avoid future remarks of an insensitive and inappropriate nature. Id. ¶ 15. On May 14, 1991, Hudson initiated a change-of-duty OER (the subject of this suit) for the plaintiff, covering the 5-month period from October 22, 1990 to March 5, 1991, evaluating the plaintiff's performance as a deputy commander. AR at 6. The OER stated that the plaintiff had displayed very poor judgment on three occasions, which resulted in embarrassment to command. Id. at 5. Specifically, the rater claimed that the plaintiff's lack of military experience, tact and people skills resulted in the disclosure of privileged information to soldiers, seriously degrading morale and diminishing the rater's impression of his loyalty. Id. at 6. Moreover, the rater claimed that the plaintiff had failed to heed his prior counseling regarding these issues. Id. Under the category of performance evaluation, however, the rater declared that the plaintiff usually exceeded requirements and recommended that he be promoted, citing the plaintiff's volunteering for active duty during Operation Desert Shield/Storm, his superb knowledge of computers, and his enthusiasm and aggressive work demeanor. Id. at 5-6. As a result of the OER, the plaintiff was transferred to a staff position at the U.S. Forces Command. Compl. ¶ 12.

On August 25-26, 1991, a formal EO investigation took place on the plaintiff's allegation that he was the object of systematic racial and religious discrimination by his rater, Hudson.

Def.'s Statement ¶ 16. The investigator substantiated the plaintiff's allegations concerning Hudson's negative comments regarding the plaintiff's dietary habits but also discerned a strong personality conflict. AR at 5. The plaintiff's senior rater, COL Cromartie, completed his portion of the OER after receiving the results of both EO investigations. Id. at 6-7. Because the OER was considered adverse, the senior rater referred it to the plaintiff for comment. Id. at 7. The plaintiff responded on January 28, 1992, challenging the OER. Id. He stated that he had previously been rated by the same officer and found to be outstanding; that the sole intervening variable between his last rating and the current one was his unwillingness to tolerate his commander's anti-semitic remarks; and that his commander had been admonished for making racial jokes and was, therefore, unqualified to rate him. Id. The plaintiff characterized the current OER as reprisal for his EO complaint and requested that a commander's inquiry*fn5 be conducted. Id.

On March 5, 1992, a commander's inquiry was completed. Id. The investigating officer found the plaintiff's allegations unsubstantiated and concluded that the OER contained no error or violation of regulations. Id. In June 1993, the plaintiff appealed the OER to the Officer Special Review Board ("OSRB"). Id. The OSRB discussed the matter with Hudson and a personnel advisor to Hudson and reviewed the available evidence, then concluded that the plaintiff failed to provide clear and convincing evidence to show that the OER was inaccurate, unjust, or in violation of regulations. Id. at 8. From 1994 through 1997, the plaintiff was non-selected for promotion to colonel. Compl. ¶ 34. In October 1997, the plaintiff was retired from the reserves for having attained the maximum years of service. Id. ¶ 35. The plaintiff appealed the contested OER and, derivatively, his nonselections for promotion to the ABCMR*fn6 on April 24, 2003, which denied his application for relief in a ten-page opinion released on November 18, ...

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