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Albino v. United States

United States District Court, D. Columbia.

January 15, 2015


Page 149

DAVID ALBINO, Plaintiff, Pro se, Madison, WI.

For USA, Defendant: Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 150

Re Document Nos.: 10, 13


RUDOLPH CONTRERAS, United States District Judge.

Denying Defendant's Motion for Summary Judgment and Granting Plaintiff's Cross-Motion for Summary Judgment


While deployed in Iraq in 2004, pro se Plaintiff David Albino received a negative Officer Evaluation Report. Plaintiff believes that the evaluation is unjust, inaccurate, and the product of numerous administrative and procedural errors, and he has spent more than a decade attempting to have the evaluation removed from his military records. An Army inquiry into the contested evaluation found that it contained numerous errors and recommended that it be removed. Additionally, two Army administrative boards have collectively ordered six corrections to the evaluation. Nevertheless, the Army Board for Correction of Military Records (" ABCMR" ) has repeatedly denied Plaintiff's request to remove the evaluation. Plaintiff now brings suit against the United States under the Administrative Procedure Act, 5 U.S.C. § § 701, et seq. (" APA" ), arguing that the ABCMR's June 20, 2009, decision denying his application to remove the contested evaluation was arbitrary, capricious, and unlawful. The parties have filed cross-motions for summary judgment. After a searching review of the administrative record and careful consideration of the parties' briefs, the Court grants Plaintiff's motion for summary judgment and denies Defendant's

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motion. The ABCMR's decision is arbitrary and capricious because it failed to respond to several of Plaintiff's non-frivolous arguments and misapplied the presumption of administrative regularity. The Court will therefore remand to the ABCMR for full consideration of Plaintiff's arguments and evidence without the presumption of regularity.


A. Plaintiff's Pre-Iraq Military Career

After serving as an enlisted sailor in the Navy and Navy Reserves, AR 403-07, 412, and graduating from law school at the University of Wisconsin-Madison, AR 445, 447, Plaintiff David Albino, on May 29, 1997, was appointed as a Reserve Commissioned Officer of the Army and assigned to the Judge Advocate General branch, effective June 3, 1997, AR 417.

For the evaluation period of June 3, 1998, to June 2, 1999, Plaintiff's Officer Evaluation Report (" OER" ) reflected a rating of " Outstanding Performance, Must Promote," and the Senior Rater rated him as " Best Qualified," concluding that Plaintiff's potential, compared to other officers rated in the same grade, was " Center of Mass." AR 322-23. For the period June 3, 1999, to June 2, 2000, Plaintiff's OER reflected a rating of " Satisfactory Performance, Promote," and the Senior Rater rated him as " Fully Qualified," concluding that Plaintiff's potential, compared to other officers rated in the same grade, was " Center of Mass." AR 320-21. This reflected a lower rating than the previous year.

For the period June 3, 2000, to June 2, 2001, Plaintiff's OER again reflected a rating of " Satisfactory Performance, Promote." AR 318-19. Plaintiff's Rater provided mixed comments that, although generally positive, were critical of Plaintiff's failure to meet physical fitness standards. AR 319. The OER did not contain comments from a senior rater because Plaintiff's Senior Rater had not served in that position for the requisite number of days. AR 319. For the evaluation period of June 3, 2001, to June 2, 2002, Plaintiff's OER reflected a rating of " Outstanding Performance, Must Promote," and the Senior Rater rated him as " Best Qualified" concluding that Plaintiff's potential, compared to other officers rated in the same grade, was " Center of Mass." AR 314-15. This rating reflected a return to higher ratings after a two-year decline, and was followed by another very positive review for the evaluation period from June 3, 2002, to April 16, 2003. AR 312-13 (reflecting ratings of " Outstanding Performance, Must Promote," " Best Qualified," and " Center of Mass" ). But Plaintiff's rating for the period of May 3, 2003, to October 31, 2003, reverted to " Satisfactory Performance, Promote," although the senior rater continued to rate him as " Best Qualified" and " Center of Mass." AR 310-11. What happened to Plaintiff's military career subsequently is what is at the center of this litigation.

B. Plaintiff's Iraq Deployment

Between December 2003 and November 2004, Plaintiff was mobilized and deployed to Iraq. AR 92, 114. His OER for this time period lists him as an International Law Officer in a civil affairs battalion assigned to the 1st Infantry Division in Iraq. AR 136. Plaintiff, however, viewed himself as serving in a dual role, as Command Judge Advocate and as an International Law Officer. See AR 123. Regardless, while in Iraq, Plaintiff found himself under the command of Lieutenant Colonel Gregory P. Fischer (" LTC Fischer" ), the Battalion Commander. The record clearly reflects that this was not a positive relationship.

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See, e.g., AR 122, 132, 133, 136-37, 222, 224.

Two projects that Plaintiff was tasked with while under LTC Fischer's command are central to the events at issue in this case. First, in the spring of 2004, Plaintiff was tasked with putting together a non-governmental organization (" NGO" ) conference to persuade NGOs to work in certain areas under the purview of the 1st Infantry Division. AR 158, 229, 269. The record reflects that Plaintiff participated in planning meetings, AR 269, and that when LTC Fischer sent out invitations to the NGO conference, Plaintiff was listed as the contact person, AR 229. The conference took place on June 1, 2004, at the Ashur Hotel at Dokan Lake in Sulaymaniyah, Iraq. AR 230-31. The event was portrayed as a success in the 1st Infantry Division's newsletter. AR 232-33. However, the record does not clearly reflect to what extent the success of the Sulaymaniyah conference was a consequence of Plaintiff's specific contributions as opposed to the work of others.[1]

Second, in June 2008, Plaintiff was involved in the 1st Infantry Division's efforts to partner with the Coalition Provisional Authority - North (" CPA-North" ) in Ibril, Iraq in order to collect intelligence regarding the movements of internally displaced Iraqis. AR 127-28, 132, 137. The record appears to indicate, however, that the 1st Infantry Division and CPA-North were not on the same page regarding Plaintiff's mission. AR 125-29, 275-76. While the 1st Infantry Division wanted to survey internally displaced persons, AR 127-29, and LTC Fischer states that Plaintiff was so tasked, AR 137, the Regional Coordinator of CPA-North, Dr. Liane Saunders, wanted Plaintiff to act instead as a liaison, allowing the 1st Infantry Division to receive information from the CPA-North staff on displaced persons, AR 125-26, 159. CPA-North expressed concern that the 1st Infantry Division's interview efforts would duplicate work already being done by NGOs, and that it would inappropriately raise either expectations in the displaced populations that they would receive benefits or fears that they would be evicted. AR 129, 159. Perhaps tellingly, Plaintiff has indicated that he believed the 1st Infantry Division's resources could have been better used elsewhere. AR 159.

Plaintiff further claims that LTC Fischer's indecisiveness regarding the CPA-North partnership and trip to Ibril resulted in repeated changes in the plans for the trip and contradictory orders regarding whom Plaintiff should brief and when. AR 92, 141, 159. Specifically, Plaintiff claims that prior to his departure to Ibril, he was told first to brief the G3 Chief of Plans, the Chief of Staff (" Cos" ), or both, before departure. AR 92. Plaintiff concedes that he did not brief either individual prior to leaving for Ibril on June 11, 2004. AR 93, 142. He maintains that he did not ignore orders, however, because on June 9, 2004, Major Gajewski told him that he could coordinate with G3 after his arrival in Irbil. AR 92, 141. Given the changing plans, conflicting orders, and difference of opinion between the 1st Infantry Division and the CPA-North, Plaintiff asked to be taken off the mission, but that request was not granted. AR 92, 137, 159.

On June 11, Plaintiff flew to Irbil. AR 141, 160. Although Plaintiff was instructed

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to bring a member of G2 with him to Ibril, he did not do so. AR 130, 160. Colonel Kamena became angry, believing that Plaintiff's team had purposely left behind a member of the G2, although Plaintiff claims that he had been told no G2 personnel were available to go and that Captain Cook -- who did accompany Plaintiff -- would cover the intelligence duties of a G2. AR 93, 130.

The Regional Coordinator of CPA-North was displeased with the 1st Infantry Division's intelligence-collecting agenda and the force protection profile required for the visit, which she felt increased the risk for her team. AR 125. She therefore suggested that the visit not take place until the differences could be worked out, but she suggested Plaintiff be left behind in Ibril to act as a liaison between the 1st Infantry Division and CPA-North. AR 126. Shortly thereafter, Plaintiff was told that he and his team should return. AR 126, 131, 260. On June 12, one day after his arrival, Plaintiff returned from Irbil to Tikrit. AR 260.

On June 14, 2004, LTC Fischer formally reprimanded Plaintiff in writing. AR 132. The reprimand chastised Plaintiff for: not providing weekly reports to G2 on refugees; departing to Irbil without first briefing either the Chief of Staff or Chief of Operations on the plan to survey Internally Displaced Civilians, despite Plaintiff's awareness of the potential negative consequences of failing to brief the Chief of Staff; and asking to be taken off the mission, a request viewed as counter to duty and the values expected of an officer. AR 132. As a result of these transgressions, Plaintiff was relieved of his ministerial duties and informed that his assignment would be changed. AR 132. On June 22, 2004, Plaintiff was ordered by LTC Fischer to report to a Civil Affairs unit in Kirkuk by June 23, 2004. AR 225.

In and around June 27, 2004, Plaintiff began helping a soldier with an issue concerning a marriage certificate from Texas to be used in support of a hardship request. AR 289-91. After Plaintiff's efforts in this respect were brought to the attention of LTC Fischer, on July 1, 2004, Fischer sternly ordered Plaintiff to cease his activities and to stop representing himself as the command judge advocate for the battalion. AR 288.

C. Plaintiff's Officer Evaluation Report for the Iraq Deployment

Pursuant to the above, for the ratings period of December 1, 2003, to June 22, 2004, Plaintiff's OER (" Iraq Deployment Evaluation" or " evaluation" ) reflected a rating of " Unsatisfactory Performance" from Major Wayne B. Doyle. AR 136-37. Plaintiff's senior rater, LTC Fischer, rated him as " Do Not Promote" and, in comparison to his peers, " Below Center of Mass. Do Not Retain." AR 137. The narrative portions of Plaintiff's evaluation also included negative comments. Major Doyle indicated that, in the two major division efforts with which Plaintiff was entrusted, Plaintiff required assistance and, at times, repeated guidance, and that Plaintiff had to be removed completely from one of the tasks. AR 137. Major Doyle further commented that Plaintiff " possesses a disposition to act independently of the chain of command and should not be advanced." AR 137.

LTC Fischer, as senior rater, added that Plaintiff's performance was less than satisfactory and that he needed constant supervision on two high profile tasks. AR 137. With respect to the first effort, the planning and execution of a division NGO conference, LTC Fischer indicated that it would not have been done had it been left to Plaintiff. AR 137. With respect to the second effort, collecting information on

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Iraqi Displaced Persons Camps, LTC Fischer indicated that Plaintiff ignored orders to coordinate the effort and had to be recalled, relieved of his duties, and given a letter of reprimand. AR 137. LTC Fischer added that Plaintiff had difficulty distinguishing between the duties of legal assistance to the command and legal assistance to unit soldiers, instead trying to do both simultaneously and clearly stepping outside of his assigned duties.[2] AR 137. LTC Fischer concluded that, " [g]iven his inability to follow orders and the requirement for constant supervision, [Plaintiff should not be retain[ed] in the United States Army." AR 137. When asked to list the future assignments to which Plaintiff was suited, LTC Fischer listed " none." AR 137 at Box VII.d. Immediately above his written comments, LTC Fischer indicated that he had received a completed DA Form 67-9-1 (Officer Evaluation Report Support Form), and that he considered that form in his evaluation and review of Plaintiff. AR 137 at Box VII.a.

With respect to Plaintiff's physical fitness during the evaluation period, the Iraq Deployment Evaluation indicates that Plaintiff was not in compliance with the Army's height and weight standards. AR 136 at Box IV.c. Major Doyle's narrative similarly states that Plaintiff was " flagged for not being in compliance with the standards of [Army Regulation] 600-9,[3]" adding that Plaintiff was unable to take the APFT during the deployment. AR 137.

The evaluation form indicates that it was not given to Plaintiff but was forwarded to him on July 1, 2004. AR 136 at Box I.m. In the spot where Plaintiff was to sign the evaluation form, there is an indication of " Refuses to Sign." AR 136 at Box. II.e.

Pursuant to Army Regulation, by letter dated August 22, 2004, Plaintiff was informed that he could respond to the above-referenced evaluation documenting unsatisfactory performance and recommending that he not be promoted. AR 307. The August 22 letter, which was e-mailed to Plaintiff, indicated that Plaintiff's suspense date -- the date by which his response to the evaluation was due -- was August 23, 2004 ( i.e., the next day). AR 307. As documented in LTC Fischer's memorandum dated November 5, 2005, Plaintiff failed to respond to the deployment evaluation by the suspense date. AR 306. However, LTC Fischer's memorandum asserted that Plaintiff's suspense date was November 4, 2004, not August 23, 2004, as had been indicated in the August 22 letter to Plaintiff. See AR 306.

D. Plaintiff's Post-Iraq Military Career

In subsequent evaluations, Plaintiff's raters characterized his performance as " Outstanding Performance, Must Promote," deemed him " Best Qualified," and recommended his immediate promotion, but Plaintiff's senior raters no longer rated his potential in comparison to his peers, instead leaving empty the designated box. AR 302-03 (June 22, 2005, to June 21, 2006: " Promote to Major immediately," " In the top 10% of the Captains I rate . . . . [S]hould be promoted immediately." ); AR 300-01 (June 22, 2006, to June 21, 2007: " CPT Albino should be promoted to Major immediately." " He ranks near the top of the CPT's I senior rate." " Promote Immediately." );

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AR 298-99 (June 22, 2007, to October 19, 2007: " CPT Albino should be promoted to Major immediately," " Promote at first opportunity . . . ." ); AR 296-97 (October 20, 2007, to April 7, 2008: " CPT Albino should be promoted to Major immediately." " Promote immediately and assign to most challenging assignments." ). On June 5, 2007, Plaintiff was informed that a Department of the Army Reserve Components Mandatory Selection Board had not selected him for promotion. AR 220.

E. Plaintiff's Challenges to the Iraq Deployment Evaluation

Plaintiff viewed the Iraq Deployment Evaluation as a career-ending, unjust, and flawed assessment, and he has presented a number of challenges to its validity over the course of the past decade.

1. Request for Commander's Inquiry

On August 28, 2004, six days after he received the referral letter, Plaintiff requested that a Commander's Inquiry be made concerning the Iraq Deployment Evaluation because, in his view, the process was riddled with procedural defects and the evaluation was substantively incorrect. AR 258-63. Plaintiff argued that the subjective performance assessment was biased against him because of LTC Fischer's personal vindictiveness and because Plaintiff is of Puerto Rican descent. AR 259-63. In the request, Plaintiff raised a number of arguments, including that:

1. The one-day suspense date was unreasonable. AR 259 n.1.
2. The evaluation process was flawed because Plaintiff was a JAG attorney, so a JAG supervisor in his chain of command had to be part of the evaluation process but was not included. Relatedly, Plaintiff argued that because he was serving under dual supervision (JAG attorney and battalion commander), the two chains had to jointly develop his duty description but did not do so. AR 262. Plaintiff also argued that he reported to Major Anthony Bradley, such that MAJ Bradley should have been Plaintiff's senior rater, not LTC Fischer. AR 259 n.2.
3. The references to Plaintiff's height, weight, and non-compliance with physical fitness requirements were erroneous. AR 262. Plaintiff argued that he had never been weighed or measured during the rating period and that, per regulation, a finding of non-compliance could not be made without first doing a body fat content calculation.
4. Contrary to the rater's comments, Plaintiff performed his NGO conference-planning duties well, and the conference was well received. AR 259.
5. With respect to the criticism he received about the trip to meet with CPA-North, Plaintiff suggested that the mission he was given to perform ( i.e., interview displaced person under the guise of surveying settlements) was unwise and duplicated other efforts. AR 260. He further argued that, due to LTC Fischer's indecisiveness leading up to the trip, his orders were ever-changing and, in some instances, contradictory. AR 260. In addition, Plaintiff characterized LTC Fischer's negative comments as vindictive, attributable to the fact that Chief of Staff Kamena had yelled at LTC Fischer, as well as racial bias. AR 261.

AR 259-63.

After Plaintiff submitted his request for a Command Inquiry, over three months passed without any word from the Army.

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AR 264. On December 7, 2004, Plaintiff again reached out to get the process going. AR 264. Plaintiff noted that, under Army Regulations, swift timeliness requirements applied to such inquiries, and that the inquiry had to be forwarded to Department of Army Headquarters not later than 120 days after the OER's " thru" date, which in this case was June 22, 2004. AR 264. In a reply e-mail, Plaintiff was told the inquiry had been delayed ...

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