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Paylor v. Winter

March 5, 2009

MARK A. PAYLOR, PLAINTIFF,
v.
DONALD C. WINTER, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

On November 14, 2007, the Board for Correction of Naval Records ("BCNR") denied a request submitted by Plaintiff Mark A. Paylor, a retired Lieutenant Commander in the United States Navy, to convene a special selection board to consider whether he should have been recommended for a promotion in 1997, 1998, or 1999. The BCNR found--and Plaintiff does not dispute--that his request was untimely because it was submitted on January 25, 2007, despite a three-year time limit that applies to such requests. Plaintiff now brings suit against Defendant Donald C. Winter, in his official capacity as Secretary of the Navy, arguing that the BCNR erred by considering two ex parte communications prior to reaching its decision and by failing to address an argument Plaintiff raised in the brief accompanying his request. Defendant has filed a Motion to Dismiss Plaintiff's Complaint, which the parties have fully briefed. After thoroughly considering the parties' submissions, relevant case law, and applicable statutory and regulatory authority, the Court shall GRANT Defendant's Motion to Dismiss in its entirety, for the reasons that follow.

I. BACKGROUND

A. Statutory and Regulatory Background

The Secretary of the Navy ("the Secretary") is authorized to convene a promotion selection board to recommend an officer for promotion. 10 U.S.C. § 611. If the Secretary determines that there was "material unfairness" with respect to a person who was considered for a promotion but was not selected, the Secretary may also convene a special selection board ("SSB") to determine whether that person should be recommended for a promotion retrospectively. Id. § 628(b)(1). The decision not to convene an SSB is subject to judicial review. Id. § 628(g).

The Secretary has prescribed regulations governing SSB procedures, as authorized by statute. Id. § 628(j). Pursuant to those regulations, an officer may a request an SSB by filing an application with the Chief of Naval Operations or the BCNR. See Secretary of the Navy Instruction (hereinafter "Instruction") 1420.1B(24)(c), (24)(n). Applications submitted to the BCNR must be referred to the Chief of Naval Operations for comments and recommendations, and questions of law or mixed questions of law and fact must be referred to the Navy's Office of Judge Advocate General ("OJAG"). See Instruction 1420.1B(24)(e)(2), (n)(2). If the BCMR concludes that an SSB is warranted after receiving these comments and recommendations, the BCNR refers the case to the Secretary for a final determination. See Instruction 1420.1B(e)(2).

During its deliberations, the BCNR is prohibited from making or receiving ex parte communications:

The Secretary of each military department shall ensure that an applicant seeking corrective action by . . . the [BCNR] . . . is provided a copy of all correspondence and communications (including summarizes of verbal communications) to or from the agency or board, or a member of the staff of the agency or board, with an entity or person outside the agency or board that pertain directly to the applicant's case or have a material effect on the applicant's case.

10 U.S.C. § 1556(a). There are exceptions to this prohibition, however, including "[a]ny correspondence that is purely administrative in nature." Id. § 1556(b).

In terms of timing, officers cannot wait indefinitely to request an SSB. In 2001, Congress amended 10 U.S.C. § 628, authorizing the Secretary to "prescribe regulations to carry out th[at] section," including "[a]ny time limits applicable to the filing of an application for [an SSB]." 10 U.S.C. § 628(j)(1)-(2), as amended. The legislation specifically noted Congress' intent that the amendments were to have both retroactive and prospective effect: the amendments . . . shall apply with respect to any proceeding pending on or after the date of the enactment of this Act without regard to whether a challenge to an action of a selection board of any of the Armed Forces being considered in the proceeding was initiated before, on, or after that date.

National Defense Authorization Act for FY 2002, Pub. L. No. 107-107, § 503, 115 Stat. 1012 (2001).

In compliance with Congress' authorization to impose time limits on SSB requests, the Secretary amended Instruction 1401.1B on June 9, 2003, through an "Administrative Message" that imposed a three-year time limit on SSB requests:

All applications for [SSB's] must be received no later than three years after the date the contested board results were made public. Applications received more than three years after the date the contested board results were made public will be treated as untimely and will be denied.

Def.'s Mot., Ex. D (6/9/03 Administrative Message). This instruction was replaced on March 28, 2006, by current Instruction 1420.1B, which retained the three-year time limit:

All applications for [SSB's] must be received no later than three years after the date the contested board results were made public. Applications received more than three years after the date the contested board results were made public will be treated as untimely and will be denied by the Chief Naval Officer . . . This authority may be delegated.

Instruction 1420.1B(5)(f).

Finally, if an SSB is convened, the Chief of Naval Operations must prepare a "sampling" of records for officers who were considered for promotion by the promotion selection board to allow an evaluation of the requesting officer's relative credentials. See Instruction 1420.1B(24)(f), (i)(2).

B. Factual Background

Plaintiff is a Caucasian male who served on active duty in the United States Navy beginning on June 19, 1981, until his retirement on October 1, 1998.*fn1 Compl. ¶ 5. Plaintiff retired with the rank of lieutenant commander after failing to obtain a promotion to commander in fiscal years ("FY") 1997, 1998, or 1999. Id. ¶¶ 6-8. After his retirement, Plaintiff "learned that instructions or precepts issued by the Secretary of the Navy and used in the FY 1997, 1998, and 1999 Line Commander Selection Boards directed the selection boards to consider race and gender when selecting officers for promotion to commander." Id. ¶ 9. Accordingly, Plaintiff filed an application and accompanying brief with the BCNR on January 25, 2007, asserting that these precepts were unconstitutional because "racial minority and female lieutenant commanders were given special preference based solely on race and gender." Id. ¶ 10. Plaintiff asked the BCNR to convene an SSB to consider him for promotion without these precepts. Id.

In response to Plaintiff's request, the BCNR requested an Advisory Opinion from OJAG. Id. OJAG issued an Advisory Opinion on April 27, 2007, concluding that Plaintiff "may have been disadvantaged by the precept language," but declining to reach the merits of Plaintiff's argument because Plaintiff "submitted his request 10 years after the fact." Id. ¶ 12; Def.'s Mot., Ex. E at 1, 5 (4/27/07 OJAG Advisory Opinion).*fn2 Accordingly, OJAG recommended that Plaintiff's request be denied as "untimely." Id.

The BCNR denied Plaintiff's request for an SSB on November 14, 2007. See Def.'s Mot., Ex. F at 3-5 (11/14/07 BCNR Decision). The BCNR found that the three-year time limit embodied in Instruction 1420.1B and its predecessor Instruction 1401.B (as amended by the Secretary's Administrative Message dated June 9, 2003), dictated that Plaintiff's January 2007 request for an SSB be deemed untimely. Id. In addition to relying directly on OJAG's Advisory Opinion for support, see Def.'s Mot., Ex. F at 4 ("[the BCNR] substantially concurs with the advisory opinion from OJAG"), the BCNR also attached to its decision an email exchange, on which it relied to show that the process for compiling sample records for the FY 1997, 1998, and 1999 promotion boards would be time consuming. See Pl.'s Opp'n, Ex. 1 at 1 (6/18/07 Email Exchange). The email exchange contained the following information:

David: Some time ago I asked whether NPC had sample records needed to conduct SSB's for the FY 97, 98, and 99 Active CDR Sel Bds (we have a pending case where the applicant is requesting that relief). The last time I followed up, I was told you were still working on it. Anything new? Jon. Jon: We do have them, however, they are all paper ...


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