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Mori v. Dep't of the Navy

August 17, 2010

MICHAEL D. MORI, UNITED STATES MARINE CORPS, PLAINTIFF,
v.
DEPARTMENT OF THE NAVY, DEFENDANT.



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

Re Document Nos.: 9, 12

MEMORANDUM OPINION

DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the defendant's motion for summary judgment and the plaintiff's cross-motion for summary judgment.The plaintiff, a Major in the Marine Corps, was denied a promotion to the rank of Lieutenant Colonel by the United States Marine Corps Lieutenant Colonel Selection Board. The plaintiff requested that the Secretary of the Navy convene a Special Selection Board ("SSB") to review the decision, but the Secretary denied his request, concluding that the plaintiff had failed to provide evidence supporting his claim. The plaintiff subsequently commenced this action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. The defendant has now moved for summary judgment, arguing that the court should uphold the Secretary's decision. The plaintiff has filed a cross-motion for summary judgment requesting that the court set aside the Secretary's decision. Because the Secretary failed to articulate what standard of proof it applied to the plaintiff's request for an SSB, the court denies the defendant's motion for summary judgment, grants the plaintiff's cross-motion for summary judgment and remands this case to allow the Secretary to explain its reasoning with the requisite degree of specificity.

II. BACKGROUND

A. Factual History

In August 2003, the Marine Corps assigned the plaintiff to the Office of Military Commissions to serve as defense counsel for detainees charged by the military commission system in Guantanamo Bay, Cuba. Compl. ¶ 7. Two months later, the Marine Corps ordered the plaintiff to represent David Hicks, the first detainee charged by the military commission system. Id. ¶¶ 7-8. In an effort to fulfill his legal obligation and his ethical obligation to zealously represent Hicks's interests, the plaintiff mounted a challenge to the validity of the military commission system, which the Supreme Court addressed in Rasul v. Rumsfeld, 542 U.S. 507 (2004). Id. ¶¶ 10-11. The plaintiff's representation of Hicks and his efforts to challenge the military commission system were widely covered in the media and in publications distributed to Marine Corps officers. Id. ¶ 11.

In October 2005, a Marine Corps promotion board considered and denied the plaintiff for a promotion to the rank of Lieutenant Colonel. Id. ¶ 12. On June 6, 2006, the plaintiff filed a request with the Secretary of the Navy for an SSB, a board convened to consider the record of an officer who alleges that he or she has been unfairly denied a promotion. Id. ¶¶ 31-32. In his request, the plaintiff asserted that the promotion board members were biased against him because he had "diligently and zealously performed the job the Marine Corps assigned [him] to do -- defend a suspected terrorist." Admin. R. at 4. Moreover, the plaintiff expressed his belief that the promotion board members, many of whom were involved in the war on terror, considered him disloyal not only because he was defending a suspected terrorist, but also because he had criticized the military commission process. Id. To support this claim, the plaintiff submitted several news articles discussing his representation of Hicks, as well as an affidavit from an officer stating that several colleagues had expressed their view that the plaintiff's defense of Hicks was inappropriate and disloyal. Id. at 25. The Commandant of the Marine Corps submitted a memorandum to the Secretary recommending that the Secretary deny the plaintiff's request for an SSB, and on February 15, 2007, the Secretary denied the plaintiff's request. Compl. ¶¶ 33, 38.

B. Procedural History

The plaintiff commenced this action on November 30, 2007, claiming that the Secretary's denial of his request was arbitrary and capricious, not based on substantial evidence, materially erroneous and otherwise contrary to law. Id. ¶ 43. The plaintiff asks the court to set aside the Secretary's denial of his request for an SSB and remand the case to the Secretary with an order that the Secretary convene an SSB to review the plaintiff's record. Id. at 9-10.

The defendant has moved for summary judgment, arguing that the court should uphold the Secretary's decision. See generally Def.'s Mot. for Summ. J. ("Def.'s Mot."). The plaintiff has filed a cross-motion for summary judgment. See generally Pl.'s Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. ("Pl.'s Cross-Mot."). As both motions are now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.

III. ANALYSIS

A. Legal Standard for a Motion for ...


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