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Donna L. Powers v. Michael B. Donley

February 23, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Donna Powers is a former Air Force officer who believes that her supervisor's failure to rank her among her peers is an injustice that merits this Court's intervention. During her tenure in the Air Force, Powers consistently received rave reviews from her supervisors -- often being ranked first among her fellow officers and sometimes even outshining all the other officers a supervisor had observed in his career. That changed somewhat in 2004 when Powers received a review that touted her many accomplishments but did not compare her performance to that of her peers. The absence of a ranking in that report, she contends, "stands as the only blemish on an otherwise exemplary body of performance evaluations," Pl. Mot. & Opp. at 24, and ultimately prevented her from being promoted to colonel.

After being denied redress through multiple internal Air Force channels, Powers filed this suit seeking judicial review of the final decision of the Air Force Board for the Correction of Military Records (AFBCMR), which declined to void, or otherwise remove from Powers's record, her 2004 performance report. Defendant Michael Donley, the Secretary of the Air Force, has now moved for summary judgment, and Powers has cross-moved for the same. Because Powers has failed to present convincing evidence of substantive or procedural error with respect to her 2004 performance review, the Court finds that it must defer to the Board's decision to let the report stand.


Powers is a retired Air Force officer whose performance record in the military is, by all accounts, quite distinguished. Her supervisors consistently gave her outstanding reviews in her Officer Performance Reports (OPRs). One of her raters described her as the "sharpest, most enthusiastic, and productive captain [he had] seen in [his] 17-year AF career." AR at 47-48. Others indicated that she was in their "top 1%." AR at 31, 33, 35. Over and over again, in a variety of duty assignments, Powers's supervising officers noted her extraordinary performance. See, e.g., AR at 52 ("talented and resourceful officer, noted for producing superior results under any conditions"), 39 ("best commander! World class officer: dynamic leader, smart, tenacious, innovative, and tireless"), 46 ("[s]uperb leader -- the very best -- extremely charismatic and energetic -- handles impossible tasks with ease").

In 2002, Powers began serving under Colonel Robert W. Tirevold as commander for the 3rd Communications Squadron at Elmendorf Air Force Base in Alaska. AR at 28. Tirevold rated Powers's performance in 2003 and 2004 in her annual OPRs. AR at 29, 111. In 2003, he stated that she was "by far [his] number one [squadron commander]." AR at 29. Powers's additional rater that year, Brigadier General Robertus Remkes, agreed, describing her as the "#1 comm professional [he had] ever seen within [his] career" and "#1 of 17 [squadron commanders] in support role." AR at 106.

Powers's 2004 OPR was likewise positive. Tirevold called her a "dynamic," "savvy," and "strong" leader and an "expert negotiator." AR at 12. He noted, furthermore, that the "[u]nit excelled under her leadership," and that she optimized contractor efforts, saving the government "a whopping $1M annually." Id. Powers's additional rater in 2004 was Brigadier General Michael Snodgrass, who also had positive comments on her performance. Id. at 13. He stated that she was "an excellent leader" with "superb staff skills" and a "positive impact on [the] wing." Id. Neither Tirevold nor Snodgrass "stratified" Powers's performance in her 2004 OPR -- that is, they did not rank her numerically relative to her peers.

In 2004, Powers went before a board to be considered for promotion to colonel. AR at 115. Among the package of materials reviewed by the board was a Promotion Recommendation Form completed by Snodgrass. Id. Snodgrass wrote a number of positive comments about Powers's performance and also quoted several "stratification" remarks by others who had supervised her -- e.g., "'Top 1%' says CENTCOM J2," "'#1 of 17 spt Sq/CCs' says 3 WG/CC." Id. His overall recommendation was "promote," which is the intermediate option between "definitely promote" and "do not promote this board." Id. The board ultimately decided not to promote Powers to colonel in 2004. AR at 3.

Powers believes her 2004 OPR was unjust and contributed to this non-promotion. See Pl. Opp. & Mot. at 5; AR at 7-8 ("If I were not selected [for promotion to colonel], I am certain this report will be the reason."). Specifically, she thinks the lack of stratification in her 2004 OPR suggests a decline in performance from the previous year in which Tirevold indicated she was "by far [his] number one [squadron commander]." AR at 7-8, 29.

Seeking to have the OPR removed from her record, Powers appealed to the Evaluation Reports Appeal Board, which denied her appeal. AR at 146. She also applied pro se to the AFBCMR. AR at 7-8. Before rendering its decision, the AFBCMR sought an advisory opinion from Headquarters Air Force Personnel Command, Directorate of Personnel Program Management (HQ AFPC/DPPE), which recommended denying Powers's request to void her 2004 OPR. AR at 18-19. The Board ultimately declined to grant relief, finding that "insufficient relevant evidence ha[d] been presented to demonstrate the existence of error or injustice." AR at 5. Powers subsequently submitted two requests for reconsideration, one in which she represented herself and one in which she was represented by counsel. AR at 62-63, 85-101. Both were denied. AR at 54-56, 71-73.

On February 4, 2011, Powers filed this action seeking administrative review of the AFBCMR's final decision. Defendant Michael Donley and Powers have filed Cross-Motions for Summary Judgment, which the Court now considers.

II.Legal Standard

Although styled Motions for Summary Judgment, the pleadings in this case more accurately seek the Court's review of an administrative decision. The standard set forth in Rule 56(c), therefore, does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997)). "[T]he 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. (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. SeeRichards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited inBloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003).

The Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009). It requires courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a "narrow" standard of review as courts defer to the agency's expertise. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (internal quotation omitted). The reviewing court "is not to substitute its judgment for that of the agency," id., and thus "may not supply a reasoned basis for the agency's action that the agency itself has not ...

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