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Becky Roberts v. the United States of America

March 23, 2012

BECKY ROBERTS,
PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Becky Roberts, an active duty officer in the United States Navy, brings this action against the United States of America, the Secretary of the Navy, Ray Mabus, and the Chairman of the Board for Correction of Naval Records (collectively "defendants"). She alleges that her superior officers made several erroneous promotion recommendations that prevented her timely promotion to a higher rank. Roberts contends that the defendants' failure to correct these recommendations when she petitioned them to do so violated the Administrative Procedure Act and the United States Constitution. Now before the Court are defendants' motion to dismiss the complaint or alternatively for summary judgment and Roberts' cross-motion for summary judgment. For the reasons set out below, the Court will grant defendants' motion and deny plaintiff's cross-motion.

I. Background

Roberts reported to the Office of Naval Intelligence ("ONI") on February 16, 1996 at the rank of Lieutenant Commander. First Am. Compl. ¶ V; Pl.'s SOF ¶ 3.*fn1 Naval officers' supervisors, or "reporting seniors," submit officer fitness reports yearly or upon the detachment of either the officer or the supervisor. A Navy directive, ONI Instruction 1610.2, issued in January 1996, guided the preparation of officer fitness reports. Pl.'s SOF ¶¶ 3-4; see Administrative Record ("A.R.") at 92-112. Reporting seniors rate each officer from 1 (lowest) to 5 (highest) in several categories and average the scores to generate a "trait average" for each officer. A.R. at 68, 95-96. On the basis of this trait average, the reporting senior makes promotion recommendations for each officer on a five-step scale: "significant problems," "progressing," "promotable," "must promote," and "early promote." See id. at 68. The directive provided instruction for generating promotion recommendations from trait averages. As explained in more detail below, the directive included a "baseline guide" for translating trait averages into promotion recommendations; this guide indicated that "Early Promote" corresponded to a trait average of 3.90 or above, "Must Promote" corresponded to a trait average of 3.50 to 3.89, and "Promotable" corresponded to a trait average of 3.00 to 3.49. See id. at 96. The directive also included "mandatory limits on the number of members that may be recommended" for the "Early Promote" and "Must Promote" categories. See id. at 95-96.

In October 1996, plaintiff received her first fitness report for her assignment. Pl.'s SOF ¶ 5. She received a performance trait average of 4.17 and was recommended as "Must Promote." Id. In June 1997, plaintiff had a conversation with the same supervisor regarding an upcoming fitness report precipitated by the supervisor's detachment from naval service. A.R. at 47. The reporting senior indicated that plaintiff's trait average had improved from the previous period. Id. The supervisor indicated that, despite plaintiff's improved average, the supervisor was constrained in his promotion recommendations and plaintiff was now tied with another officer whom the supervisor wanted to recognize for his improvement. Id.; see Pl.'s SOF ¶¶ 16-17. The supervisor also indicated that Roberts was assigned to an "infrastructure billet,"*fn2 rather than a billet in "intelligence production," and that the Command Ranking Board looked upon that assignment with disfavor. A.R. at 47; see Pl.'s SOF ¶ 18. The supervisor indicated that he was accordingly reducing her promotion recommendation from "Must Promote" to "Promotable." A.R. at 47. The supervisor nonetheless assured Roberts that "this decline would not be detrimental to her promotion nor send the wrong message to the selection board," since her trait average was high and this was the most important element for promotion. Id. at 48; see Pl.'s SOF ¶ 91. Later that month, she received the fitness report with a trait average of 4.33 and a recommendation of "Promotable." Pl.'s SOF ¶ 8. The report indicated that the promotion recommendation "in no way reflects a decline in her performance, but a change in the number of officers in the compet[i]tive category." A.R. at 85. This latter statement was incorrect; the number of officers in the category had not changed. Pl.'s SOF ¶ 22.

In September 1997, the directive governing the preparation of officer fitness reports was revised slightly. Pl.'s SOF ¶ 11. The directive kept in place the same "mandatory limits" on the number of members that could be rated Must Promote and Early Promote and raised upward the trait averages corresponding to each promotion recommendation. See A.R. at 108-09.*fn3 In October 1997, plaintiff received a fitness report from her new supervisor; she received a trait average of 3.83 and an unchanged "Promotable" recommendation because the new reporting senior "wished to maintain all officers in the same category during the abbreviated reporting period." Pl.'s SOF ¶¶ 10, 24. In October 1998, plaintiff received a trait average of 4.00 and an increase to a "Must Promote" recommendation. Pl.'s SOF ¶ 29.

Roberts submitted a petition to the Board for Correction of Naval Records in March 1999. Pl.'s SOF ¶ 26; A.R. at 234. This petition sought to change her June 1997 performance recommendation to "Must Promote" or to delete the entire fitness report from her record, and also to delete the October 1997 report from her record. A.R. at 234. The petition was denied in October 2000. Pl.'s SOF ¶ 27. Plaintiff contends that as a result of the June and October 1997 reports, she was "deselected from a field grade" in "residence war college billet" and "was not selected for promotion to Commander on the first review" in May 2001. First Am. Compl. ¶¶ XV-XVI; see A.R. at 31-32. In November 2001, the reporting senior who initially downgraded plaintiff's rating to Promotable in June 1997 wrote a letter recommending her promotion, indicating that he was "unfamiliar[] with the long term impact of subtle influences" of the reporting system, which "should not be used to negatively impact [plaintiff's] promotability." A.R. at 49. Plaintiff was selected for promotion to "Commander" on second review in May 2002. First Am. Compl. ¶ XVII; see A.R. at 32.

After a series of fitness reports and reassignments, in October 2002 plaintiff transferred to the Joint Forces Intelligence Command. First Am. Compl. XXIV; Pl.'s SOF ¶ 38. In fitness reports in August 2003 and 2004, she received performance recommendations of "Early Promote," with trait averages of 4.33 and 4.5, respectively. Pl.'s SOF ¶¶ 40-41. However, when plaintiff's commanding officer retired in May 2005, he rated plaintiff as "Promotable" despite an increase in her trait average to 4.67. Id. ¶ 42. Plaintiff discussed the lower rating with her supervisor, who explained that another officer was being screened for a third time by the Commander Sea Screening Board. Pl.'s SOF ¶43. The supervisor stated that he was "helping out 'fellow' officers" by giving the higher recommendation to the officer being reviewed a third time. A.R. at 33. Plaintiff contends that as a result of this fitness report, she was not selected for a later promotion. Pl.'s SOF ¶ 68.

In October 2008, plaintiff filed a second petition with the Board. See A.R. at 7-29. This petition argued again that the 1997 fitness reports were invalid and also that the 2005 report was a result of invidious gender discrimination. See A.R. at 16. In February 2009, the Board requested that certain offices provide advisory opinions regarding the petition. See A.R. at 135. The Navy Equal Employment Opportunity Office, the Navy's Office of Legal Counsel, and the Navy Personnel Command each submitted an advisory opinion recommending denial of the petition. See A.R. 54-65. Plaintiff responded to these opinions in September 2009. See A.R. at 210-14. In December 2009, the Board denied plaintiff's petition. See A.R. at 2-3.

Plaintiff then filed a complaint in the United States Court of Federal Claims on March 26, 2010. See Roberts v. United States, 98 Fed. Cl. 130, 135 (2011). She alleged that the June and October 1997 fitness reports and the May 2005 fitness report were prepared improperly, that the Board acted arbitrarily and capriciously and without the support of substantial evidence by denying her October 2008 petition, and that the Navy's actions deprived her of liberty and property interests in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution. Id. That court determined that it did not have jurisdiction over plaintiff's claims because the relief sought - correction of plaintiff's records - was not "money-mandating": "[e]ven if the court were to grant Plaintiff all of the relief she seeks, another selection board would have to review Plaintiff's service records and determine whether she should have been promoted." 98 Fed. Cl. at 140-141. The court determined that the United States District Court for the District of Columbia was the appropriate forum for plaintiff's claims under the Administrative Procedures Act and United States Constitution. Id. at 143-44. The court therefore transferred plaintiff's case to this Court. Id. at 144.

Roberts filed an amended complaint in this Court on June 2, 2011. In it, she alleges that the Board's failure to remove the two 1997 fitness reports and the May 2005 fitness report was arbitrary and capricious and not supported by substantial evidence. See First Am. Compl. ¶¶ XXXV-XLIII. She also alleges that the Navy violated her constitutional rights under the Due Process Clause by failing to correct her record. See id. ¶¶ XLV-XLVI. Plaintiff seeks to have the three fitness reports set aside, to have the Navy conduct special selection boards to ascertain whether she should have been promoted on the two occasions that she was not, and to be awarded pay and benefits for the years she alleges she should have been employed at a higher rank. See id. at 8-9.

II. Standard of Review

All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (explaining that the court has "never accepted legal conclusions cast in the form of factual allegations").

Under Fed. R. Civ. P. 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. In a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does not apply because of the limited role of a court in reviewing the administrative record. See Nat'l Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, *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. 2d 6 (D.D.C. 1997). 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." See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); see also Northwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994) ("[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record."). 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. See Richard v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003).III. Finally, a federal court has jurisdiction to review the decisions of a civilian board constituted to correct military records, but "we do so under an 'unusually deferential application of the 'arbitrary or capricious' standard' of the Administrative Procedure Act." Cone v. Caldera, 223 F.3d 789, 792-93 (D.C. Cir. 2000) (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)).

III. Analysis

Plaintiff seeks review of the Board for Correction of Naval Records' decision not to modify her records by correcting or removing the two 1997 fitness reports and the May 2005 fitness report. She alleges that she was deprived of her constitutional right to due process. Plaintiff also claims that the May 2005 fitness report was prepared as a result of gender discrimination in violation of her right to equal protection. She further alleges that the Board's decision was arbitrary and capricious and not supported by substantial evidence, in violation of the ...


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