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Reilly v. Secretary of the Navy

United States District Court, District Circuit

January 29, 2014

RICHARD J. REILLY, Plaintiff,
v.
SECRETARY OF THE NAVY, et al., Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Plaintiff Richard J. Reilly (“Reilly”), a former Captain in the Marine Corps Reserves (“MCR”), filed the Amended Complaint (ECF No. 6) (“Am. Compl.”) in the instant case on January 30, 2012, naming as defendants the Secretary of the Navy, the Board for Correction of Naval Records (“BCNR”), and the United States (collectively, “Defendants”). Reilly’s claims stem from his twice being denied promotions to the rank of Major within the MCR. Reilly alleges that he was denied promotion and subsequently discharged from the MCR because of a clerical error in the approval process for his first application for promotion—an error that, according to Reilly, the BCNR wrongly declined to correct. The Amended Complaint contains two counts: “improper discharge” (Count I), and violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 702 (2012) (Count II). The Prayer for Relief in the Amended Complaint requests “constructive service from the time [Reilly] was improperly removed from the promotions list[, ]” along with “back pay, allowances, restoration of date of rank and lineal precedence, and any other emoluments” that Reilly would have been entitled to had he not been denied promotion. (Am. Compl. at 7.)

Before the Court now is Defendants’ motion to dismiss Reilly’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative, to grant summary judgment in favor of Defendants pursuant to Rule 56. For the reasons set forth below, the Court will GRANT Defendants’ motion, dismissing Count I of Reilly’s Amended Complaint, and entering summary judgment in Defendants’ favor with respect to Count II. A separate order consistent with this opinion will follow.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Legal Framework For Military Promotions

Reserve military officers are selected for, and receive, promotions in rank pursuant to parameters that are set forth in a federal statute. See 10 U.S.C. §§ 14101-317 (2012). As with active duty officers, the law dictates that “selection boards” constituted pursuant to 10 U.S.C. § 14101 determine the promotion-eligibility of reserve officers.[1] After reviewing all eligible candidates for promotion, the selection board returns to the Secretary of the relevant military department a report listing the names of the officers the selection board recommends for promotion. See 10 U.S.C. §§ 14108, 14109. The Secretary then reviews this report to ensure that it complies with applicable laws and regulations, and subsequently submits the report, along with any additional recommendations, to the Secretary of Defense, for further transmittal to the President for his approval. 10 U.S.C. § 14111. During this process, the Deputy Secretary of Defense, the Secretary of Defense, or the President may remove from the promotion list the names of officers the selection board recommended for promotion. 10 U.S.C. § 14111(b). The names of officers who are ultimately selected for promotion are disseminated to the relevant military department at any time after the President approves them. 10 U.S.C. § 14112. However, the President retains the authority to remove the name of any officer from a promotion list at any time before that officer is actually promoted. 10 U.S.C. § 14310(a).

B. The 2003 Promotion Board’s Selection Of Reilly And Reilly’s Subsequent Removal From The 2003 Major Promotion List

Reilly was commissioned as an officer in the Marine Corps in April of 1993, and remained on active duty until February of 2001, when he resigned his commission and accepted a new commission as a Captain in the MCR. (Am. Compl. ¶ 6.) Subsequently, the Fiscal Year 2003 Reserve Major Promotion Board (the “2003 Promotion Board”), a board that the Secretary of the Navy duly constituted pursuant to 10 U.S.C. § 14101, selected Reilly for promotion to Major. (Id.)[2] As a result of this selection, Reilly’s name was placed on the 2003 Major Promotion List, and his promotion was scheduled to go into effect on October 1, 2002, once the list received approval from the President. (Administrative Record (“AR”) (ECF No. 9) at 11 (Memorandum from Commandant of the Marine Corps to Acting Secretary of the Navy Regarding Captain Richard J. Reilly (“CMC Memo”).) However, on September 26, 2002, Reilly was informed that his promotion had been delayed and that the removal of his name from the 2003 Major Promotion List was under consideration. (Id. at 10.)

The delay was due to a Non-Judicial Punishment (“NJP”) present in Reilly’s military record. Reilly had received the NJP as a result of an incident that had occurred in March of 1998, while Reilly, then on active duty, was stationed in Norway. Reilly went to a bar during a period of “liberty, ” and became intoxicated. (AR at 10 (CMC Memo).)[3] Then, while riding a Marine transport bus back to his base, Reilly grabbed the buttocks and crotch area of a female Marine. (Id.; Am. Compl. ¶ 7.) Reilly was subsequently charged with one count of “behavior unbecoming an officer and a gentleman” pursuant to 10 U.S.C. § 933, and he voluntarily accepted NJP in April of 1998. (AR at 49 (Punitive Letter of Reprimand to Captain Richard J. Reilly).) As a result, Reilly received a letter of reprimand and was required to forfeit $500 in pay for two months, and $250 in pay for two additional months. (Id. at 43 (Report of Nonjudicial Punishment in the Case of Captain Richard J. Reilly).)

On June 9, 2003, while the removal of Reilly’s name from the 2003 Major Promotion List was still under consideration, the Acting Commandant of the Marine Corps (“CMC”), Gen. Michael W. Hagee, sent a three-page memorandum to the Secretary of the Navy with the subject line “POSSIBLE REMOVAL FROM THE FY03 MAJOR (USMCR) PROMOTION LIST IN THE CASE OF CAPTAIN RICHARD J. REILLY.” (AR at 10-12 (CMC Memo).)[4] In the Memorandum, the CMC acknowledged and explained the circumstances of Reilly’s NJP. (Id. at 10.) The CMC also noted that Reilly’s then-current commanding officers uniformly praised him and that these officers opined that the 1998 NJP incident “is considered an anomaly from an otherwise sustained record of excellence and high standard of conduct.” (Id. at 11-12.) Finally, the CMC himself noted his belief that “this single incident was out of character for Captain Reilly and I believe it to be a one-time lapse in judgment. . . . Therefore, I do not believe this incident merits Captain Reilly’s removal from the promotion list.” (Id. at 12.) This memorandum of endorsement concluded with the CMC’s signature, and underneath the CMC’s signature on the last page of this memorandum was the phrase “SECNAV DECISION, ” followed by three additional lines stating “APPROVE, ” “DISAPPROVE, ” and “OTHER.” Next to each of these words was a blank space for the Secretary of the Navy’s signature. (Id.)

On February 17, 2004, the Secretary of the Navy disapproved the CMC’s promotion recommendation by initialing and dating the “DISAPPROVE” line at the end of the CMC’s memorandum. (AR at 12 (CMC Memo).) The Deputy Secretary of Defense, Paul Wolfowitz, then wrote a separate memorandum to President George W. Bush on behalf of the Secretary of Defense on May 31, 2004, requesting that Reilly’s name be removed from the 2003 Major Promotion List. (AR at 13 (Memorandum from Deputy Secretary of Defense to President (“Wolfowitz Memo”)).) In the memorandum, the Deputy Secretary of Defense specifically noted that he was recommending Reilly’s removal from the 2003 Major Promotion List because “[a]fter reviewing Captain Reilly’s response and the evidence contained in the investigative report, the Commandant of the Marine Corps states that he has lost trust and confidence in this officer’s ability to assume positions of greater responsibility.” (Id.)[5] The President removed Reilly’s name from the 2003 Major Promotion List on June 21, 2004. (Id.)

C. The 2006 Promotion Board’s Denial Of Reilly’s Promotion Application

Reilly was once again eligible for promotion to Major via the Fiscal Year 2006 Major Promotion Board (the “2006 Promotion Board”). (Am. Compl. ¶ 10.)[6] The 2006 Promotion Board denied Reilly’s application on April 29, 2005. (AR at 220 (Memorandum from CMC to Reilly Regarding Mandatory Separation), ¶ 3.) Reilly’s second failure to be selected for promotion required his mandatory separation from the MCR pursuant to 10 U.S.C. § 14505.[7] Accordingly, Reilly’s separation from the MCR was set for November 1, 2005. (Id.)

D. Reilly’s Petition To The BCNR

On June 8, 2005, while his mandatory separation was pending, Reilly filed a petition with the BCNR seeking to have the records in his personnel file regarding his two failures to achieve promotion to Major “corrected.” (AR at 6-9 (BCNR Petition).) The BCNR operates pursuant to 10 U.S.C. § 1552, which grants the Secretary of the Navy the authority to establish procedures for the correction of military records upon request of a claimant. The regulations governing the BCNR provide that

[t]he Board is not an investigative body. Its function is to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary’s behalf when authorized.

32 C.F.R. § 723.2(b) (2013). The regulations further provide that an application for correction may be denied if the Board “determines that the evidence of record fails to demonstrate the existence of probable material error” and that, in making this determination, “the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.” Id. § 723.3(e)(2). When the BCNR denies an application, it must “be made in writing and include a brief statement of the grounds for denial.” Id. § 723.3(e)(3). The BCNR’s written opinion must also attach “any advisory opinion considered by the Board which is not fully set out in the statement.” Id. § 723.3(e)(4).

Reilly’s petition to the BCNR specifically requested that all documents associated with his removal from the 2003 Major Promotion List be removed from his official record, and that his failure to be selected to the 2006 Major Promotion List be removed from his record as well. (AR at 9 (BCNR Petition).) The stated basis for Reilly’s petition was his belief that the Deputy Secretary of Defense (and consequently the President) had received erroneous information regarding the CMC’s opinion of whether Reilly should be retained on the 2003 Major Promotion List. (Id. at 6-7; Plaintiff’s Response to Motion to Dismiss (ECF No. 11) (“Pl. Br.”) at 4.) According to Reilly, the Deputy Secretary of Defense had mischaracterized the CMC as having “lost trust and confidence in this officer’s ability to assume positions of greater responsibility” (AR at 13 (Wolfowitz Memo)), when in fact, quite to the contrary, the CMC’s prior memorandum to the Secretary of the Navy had specifically stated that “I recommend that Captain Reilly’s name remain on the Fiscal year 2003 Reserve Major Promotion List” (AR at 11 (CMC Memo)). Given this alleged mistake, Reilly reasoned that, if the BCNR removed all of the documents that had been added to his file related to promotion after his name was placed on the 2003 Major Promotion List, then his place on the 2003 Major Promotion List would be restored and could then be resubmitted to the Secretary of the Navy and the President for approval. (AR at 6-7 (BCNR Petition).)

After receiving Reilly’s petition, the BCNR sought an advisory opinion on Reilly’s case from the Judge Advocate Division of the Military Justice Branch (“JAM”) at Headquarters Marine Corps. (Defendants’ Brief in Support of Motion to Dismiss (ECF No. 10-1) (“Def. Br.”) at 5; Pl. Br. at 4-5.) On August 26, 2005, JAM provided an opinion recommending that Reilly’s petition be denied. (AR at 15 (JAM Advisory Opinion).) JAM’s opinion was based largely on the affidavit of Matthew Spurlock, a JAM lawyer. (Id.) Spurlock’s affidavit stated that he had interviewed Major Peter Gillis, who had been the Head of Officer Promotions for MCR during the time when the removal of Reilly’s name from the 2003 Major Promotion List was under consideration. (AR at 17 (Spurlock Affidavit).) Spurlock averred that Major Gillis told him that Gillis had personal knowledge that the CMC had changed his recommendation regarding Reilly, and that the Deputy Secretary of Defense’s May 31, 2004, memorandum to the President accurately reflected the CMC’s final recommendation. (Id.) The BCNR obtained an affidavit from Major Gillis himself in August of 2005, which was identical in substance to the affidavit that Spurlock provided. (AR at 19 (Gillis Affidavit).) BCNR procedures provided Reilly a chance to respond to both affidavits, which he did. Reilly criticized the affidavits as hearsay, and also questioned both how Major Gillis could have been privy to conversations between much higher-ranking officers and why there was no written document memorializing the CMC’s supposed change of opinion regarding Reilly’s promotion. (AR at 20-24 (Letters from Reilly’s Counsel to BCNR Responding to JAM Advisory Opinion).)

On October 17, 2005, the BCNR issued a two-page decision denying Reilly’s petition to “correct” his personnel file by removing promotion-related records. (AR at 1-2 (BCNR Decision Letter).) The BCNR decision found that “the evidence submitted was insufficient to establish the existence of probable material error or injustice.” (Id.) In so finding, the BCNR relied primarily upon the affidavit of Major Gillis, as well as the “presumption of regularity” that “attaches to all official records.” (Id. at 2.)

E. Reilly Files A Lawsuit

On August 3, 2009, Reilly filed a complaint in the United States Court of Federal Claims, alleging claims under the Tucker Act, 28 U.S.C. § 1491, and the APA, and seeking restoration of rank as well as all emoluments and back pay. See Reilly v. United States, 93 Fed.Cl. 643, 645 (Fed. Cl. 2010).[8] On July 9, 2010, the Court of Federal Claims dismissed Reilly’s monetary claims pursuant to Fed.R.Civ.P. 12(b)(6). Id. at 650. The court held that the Tucker Act did not apply because Reilly had failed to identify any constitutional, statutory, or regulatory basis supporting the argument that he was entitled to monetary relief. Id. at 648-649. The Court of Federal Claims also concluded that it had no jurisdiction over Reilly’s request for non-monetary relief and, accordingly, transferred Reilly’s remaining claims to this Court pursuant to 28 U.S.C. § 1631. Id. at 653.

The instant case was docketed in the United States District Court for the District of Columbia on March 15, 2011 (ECF No. 1), and Reilly filed his Amended Complaint on January 30, 2012. (ECF No. 6.) As noted above, the Amended Complaint contains two counts: improper discharge (Am. Compl. ¶¶ 12–15), and violation of the APA based on the BCNR’s allegedly erroneous denial of Reilly’s petition (id. ¶¶ 16–19). On March 30, 2012, Defendants filed the instant motion, arguing that Reilly’s claims should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and/or failure to state a claim upon which relief can be granted, or in the alternative that the Court should grant summary judgment in ...


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