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Calloway v. Harvey

December 4, 2008


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


On September 18, 2006, the plaintiff filed an Amended Complaint in this matter under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06 (2000), seeking judicial review of the Army Board for Correction of Military Records ("Army Board")*fn1 denial of his request to remove two Noncommissioned Officer Evaluation Reports ("Evaluation Report or Reports") from his personnel file. Amended Complaint ("Am. Compl.") ¶ 59. Specifically, the plaintiff asserts that the Army Board's denial of his request to remove his two Evaluation Reports for the periods August 1993 to January 1994 and February 1994 to November 1994 from his personnel file "violated the [APA] [because it amounts to] arbitrary and capricious agency action, unsupported by substantial evidence, and otherwise not in accordance with Army regulations." Am. Compl. at 1, 21. According to the plaintiff, the two Evaluation Reports should have been removed from his personnel file because they did not properly reflect his work performance and affected his ability to get promoted. Am. Compl. ¶¶ 1-35. Currently before the Court are (1) the plaintiff's Motion to Supplement the Administrative Record ("Pl.'s Mot. to Supp."), (2) the defendant's Motion for Summary Judgment ("Def.'s Mot. for Summ. J."), and (3) the plaintiff's Cross Motion for Summary Judgment ("Pl.'s Cross-Mot.").*fn2 For the reasons set forth below, (1) the plaintiff's Motion to Supplement the Administrative Record is denied, (2) the defendant's Motion for Summary Judgment granted, and (3) the plaintiff's Cross Motion for Summary Judgment is denied.


The underlying facts of this case were exhaustively discussed in this Court's prior Memorandum Opinion, Calloway v. Brownlee, 366 F. Supp. 2d 43, 47-49 (D.D.C. 2005), and will only briefly be reviewed here to the extent necessary to resolve the pending motions.

In 1974, the plaintiff enlisted in the United States Army as an active duty member. Am. Compl. ¶ 1. Initially, the plaintiff trained as an automated data specialist; however, in October 1983, he became an Army recruiting specialist. Id. Although the plaintiff received several awards and accolades concerning his job performance throughout his career, he contends that once Captain Latham became his supervisor and performance evaluator, his scores or his Evaluation Reports began to decline.*fn3 Id. ¶¶ 9-17. For example, the plaintiff noted that Captain Latham awarded him only "two 'excellence' marks and three 'success ratings'" on his Evaluation Report for the period of August 1993 through August 1994,*fn4 despite having received five "excellence marks" in his prior Evaluation Report. Id. ¶ 17. Following the issuance of the 1994 Evaluation Report, the plaintiff was assigned to another battalion. Id. ¶ 30. The plaintiff opines that his 1994 Evaluation Report should have been classified as a "relief-for-cause" Evaluation Report,*fn5 which would have provided him the opportunity to receive formal counseling, time to react to the report, and an explanation of the reasons for his removal, because it formed the basis for his transfer to another battalion. Id. ¶ 29. Thus, according to the plaintiff, the Army failed to comply with its own regulations. Id. ¶¶ 18-29. In November 1994, the plaintiff was issued another Evaluation Report by his new supervisor. Id. According to the plaintiff, "'vast improvements'" resulted from his eleven months at his new duty with the Cherry Hills company. Id. ¶ 31 (citing Memorandum in Support of Defendant's Motion to Dismiss, Transfer, Or, Alternatively, for Summary Judgment ("Def.'s June 10, 2005 Mem. to Dismiss"), Exhibit ("Ex.") 1, (Administrative Record ("A.R.")) vol. 1 at 25, 30-31). Despite these results, the plaintiff was relieved of his duty assignment, allegedly based on the raters' statements that he was "not proficient in the duties," and for "weak[ness] in [his] basic skills and not [being] a team player." Id. ¶¶ 33-34. In addition, one rater attributed the company's improvements to "the hard work and dedication of the company commander and stations commanders." Id. ¶ 34. Again, the plaintiff contends that the Evaluation Report he was issued should have been a "relie[f]-for-cause" Evaluation Report. Id. ¶ 37.

The plaintiff filed an appeal with the Enlisted Special Review Board ("Review Board"). Id. ¶¶ 37(D), 39-40. The Review Board denied the plaintiff's request to set aside his two Evaluation Reports from 1993-1994, id. ¶ 41, and only amended the ending date of the second Evaluation Report, shortening it from December to November 1994, Calloway, 366 F. Supp. 2d at 49 (citing ¶ 33 of the plaintiff's original complaint). The plaintiff appealed the Review Board's denial to the Army Board, which also denied his request. Am. Compl. ¶ 45.

On February 13, 2004, the plaintiff commenced this action challenging the Army Board's decision to deny his request to have the two contested Evaluation Reports "removed from his personnel file or otherwise corrected to reflect his true work performance." Calloway, 366 F. Supp. 2d at 49. The defendant moved for dismissal of this action, or alternatively requested summary judgment, and the plaintiff filed a cross-motion for summary judgment. Id. The Court denied both government motions and granted, in part, the plaintiff's cross-motion for summary judgment. Id. at 53.

The Court rendered its rulings for the following reasons. First, this Court found, despite the defendant's argument to the contrary, that the Little Tucker Act, 28 U.S.C. § 1346 (2000), did not prevent this Court from exercising subject matter jurisdiction because the plaintiff was not seeking monetary relief in excess of $10,000. Calloway, 366 F. Supp. 2d at 50-53. The defendant also asserted that it was entitled to summary judgment because the administrative record clearly showed that the agency carefully considered the claims advanced by the plaintiff, and thus, it did not violate the "arbitrary and capricious" standard of the APA, 5 U.S.C. § 706(2)(a). Id. at 54. The plaintiff, on the other hand, asserted, among other arguments, that the Army Board's actions were "arbitrary and capricious" because it failed to consider the plaintiff's claim that the two contested Evaluation Reports were improperly classified. Id. After a careful review of the administrative record and the papers submitted to it by the parties, this Court held that even though it was not "explicitly clear" that the plaintiff was contending that his Evaluation Reports were improperly classified, "there [was] some evidence in the record to suggest" that this argument had been raised. Id. at 55. Moreover, because the plaintiff was proceeding prose at the agency level, this Court took great pains to ensure that his rights were protected from "the consequences of technical errors." Id. Thus, because the improper classification argument had not been reviewed by the Army Board, the Court remanded the case to the Army Board to address this argument in the first instance and administratively closed the case. Id. at 56. The Court indicated that "[s]hould the plaintiff be dissatisfied with the Army's review of his matter, he simply needs to file a notice with this Court requesting that this matter be reinstated." Court Order at 2 n.1, Mar. 30, 2005.

On remand to the agency, the Army Board determined that "there is insufficient evidence to show the contested [Evaluation Reports] should have been relief-for-cause reports." Plaintiff's Notice of Agency Decision on Remand; Motion for Leave to File Amended Complaint ("Notice of Agency Decision"), Attachment ("Attach.") (Record of Proceedings, Nov. 15, 2005) at 8; see also Am. Compl. ¶ 53. On July 24, 2006, the plaintiff advised the Court that he is "dissatisfied with the Army's review of his [agency] case, 'and request[ed] [that] the Court reinstate his civil action.'" Notice of Agency Decision at 1 (footnote omitted). In compliance with the Court's representation when it remanded this case for further agency review, on September 18, 2006, the Court reinstated this action and granted the plaintiff's Motion for Leave to File an Amended Complaint.


The Secretary's denial of the application to correct the plaintiff's military "records is a final agency action . . . review[able] under the Administrative Procedure Act." Miller v. Lehman, 801 F.2d 492, 496 (D.C. Cir. 1986) (citation omitted); McDougall v. Widnall, 20 F. Supp. 2d 78, 82 (D.D.C.1998). Judicial review of the final decision of the Army Board is limited to a determination of whether the board's decision "is arbitrary and capricious, contrary to law, or unsupported by substantial evidence." Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997); see generally Piersall v. Winter, 435 F.3d 319, 321-25 (D.C. Cir. 2006). And, the final decisions of boards empowered to correct military records are reviewable under "an unusually deferential application of the 'arbitrary and capricious' standard." Musengo v. White, 286 F.3d 535, 538 (D.C. Cir. 2002) (quoting Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Thus, "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." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Accordingly, a court "will not disturb the decision of an agency that has 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" MD Pharm. Inc. v. Drug Enforcement Admin., 133 F.3d 8, 16 (D.C. Cir. 1998) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43); see alsoDickson v. Sec'y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995) ("A reviewing court will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.") (internal quotations and citation omitted); Smith v. Dalton, 927 F. Supp. 1, 5 (D.D.C. 1996) ("[I]f the record contains such evidence that a reasonable mind might accept as adequate to support a conclusion, the court must accept the Board's findings."). Furthermore, 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." Frizelle, 111 F.3d at 177 (internal quotations and citation omitted); see alsoCone, 223 F.3d at 793; Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979) ("Strong policies compel the court to allow the widest possible latitude to the armed services in their administration of personnel matters.").

Ordinarily, under the Federal Rules, summary judgment is appropriate when a court finds 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). Yet, where the parties request "review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, . . . the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record." Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006).

Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did."

Id. (citations omitted). Therefore, the Court can employ summary judgment to "decid[e], as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. at 90 (citing, among others,Bloch v. Powell, 227 ...

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