United States District Court, District of Columbia
ISRAEL A. MAGNESON, Plaintiff,
RAYMOND EDWIN MABUS, JR., in his official capacity as the Secretary of the Navy, Defendant.
Tanya S. Chutkan, United States District Judge
Plaintiff Israel Magneson challenges the Board for Correction of Naval Records’ denial of his application to correct his military record. Shortly after it was filed, this case was referred to a Magistrate Judge for full case management. The parties then filed a motion to dismiss and cross-motions for summary judgment, all of which the Magistrate Judge denied without prejudice to allow Magneson to amend his Complaint, which he did on October 1, 2013. The parties again filed cross-motions for summary judgment, and the Magistrate Judge issued a Report and Recommendation on October 28, 2014, recommending that Plaintiff’s motion be denied, and Defendant’s granted. Without taking a position on the Magistrate Judge’s Report and Recommendation, this court remanded the case to the Board for Correction of Naval Records (the “Board”) to consider one of Plaintiff’s arguments. After addressing Plaintiff’s arguments, the Board again rejected Plaintiff’s application, and the parties renewed their cross-motions for summary judgment. Having considered the pleadings and the record, for the reasons stated herein, Plaintiff’s motion is DENIED and Defendant’s motion is GRANTED.
Plaintiff Magneson is a former Lieutenant in the United States Navy. (Am. Compl. ¶ 3). Pursuant to orders issued in February 2009, Magneson reported aboard the USS REUBEN JAMES on August 4, 2009, and began duties as the Chief Engineer on September 28, 2009. (Am. Compl. ¶¶ 5-6; Administrative Record (“AR”) 15). The 2009 Orders also set Magneson’s Planned Rotation Date-the date he would transition from the JAMES to a different duty station-as February 2011. (AR 44).
Magneson’s tenure as Chief Engineer proved troublesome. During his period aboard the JAMES, Magneson’s Commanding Officer verbally counseled him multiple times for his deficient performance. (Def.’s First Mot. for Summ. J. at 3). In addition to verbal counseling, Magneson received two written Letters of Instruction detailing his failure to maintain and lead his department, and requiring specific corrective actions. (AR 15-24). On July 2, 2010, after determining that Magneson had failed to follow the directives in his second Letter of Instruction, the Commanding Officer requested a Detachment for Cause (“DFC”) from Navy Personnel Command, “based on [Magneson’s] unsatisfactory performance over an extended period of time.” (AR 15-17). A DFC, which removes an officer from their current post prior to their normal transfer or planned rotation date, “has a serious effect on the officer’s future naval career, ” and “is one of the strongest administrative measures used in the case of officers.” (Def.’s First Mot. Summ. J., Ex. 1 at 2, Naval Military Personnel Manual (the “Manual”) 1611-020(1)(b)).
DFC’s are processed according to Manual 1611-020. (Id.). Once a DFC is requested, the officer is given a chance to respond, which Magneson did on July 16, 2010. (AR 25-30). The request and response are then forwarded through the officer’s chain of command and up to Navy Personnel Command, with each officer in the chain of command required to endorse the request for it to take effect. (Def.’s First Mot. Summ. J., Ex. 1 at 7-10). In Magneson’s case, the DFC was endorsed five times by four different officers. (AR 31-34). The first endorsement occurred when the Commanding Officer originally requested the DFC. (AR 13). The Commanding Officer then endorsed the DFC a second time on July 30, 2010, after receiving Magneson’s rebuttal. (Id.). The third, fourth, and fifth endorsements occurred on August 17, September 11, and September 23, 2010, respectively. (Id.). Navy Personnel Command acknowledged receipt of the endorsed DFC request on January 5, 2011, and due to the pending DFC, extended Magneson’s orders aboard the JAMES past February 2011, setting a new Planned Rotation Date of March 2011. (Am. Compl. ¶ 14).
While the DFC request was pending, Magneson became eligible for promotion to Lieutenant Commander. The officers in his chain of command, all of whom had endorsed the DFC, did not recommend that Magneson be removed from the promotion list, but the promotion was nonetheless delayed due to the pending DFC. (Am. Compl. ¶¶ 15-16; AR 39). On March 10, 2011, approximately one month after notifying Magneson that his promotion was delayed, Navy Personnel Command formally approved the DFC request, and on May 3, 2011, issued Permanent Change of Station orders transferring Magneson to a new duty assignment. (Am. Compl. ¶ 19; AR 66).
Because of the likelihood that a DFC would not only delay his promotion, but prevent a promotion entirely, in early May 2011 Magneson submitted an application to the Board requesting that the DFC be expunged from his record, and that he be promoted to Lieutenant Commander. (Am. Compl. ¶ 28). The Board was established by the Secretary of the Navy, and is comprised of civilians who “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); see also 10 U.S.C. § 1552. The Board reviews “all pertinent evidence of record, ” and will deny an application where it finds “insufficient evidence to demonstrate the existence of probable material error or injustice.” 32 C.F.R. § 723.3(e)(1)-(2). 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).
Magneson alleged in his Board application that “the Navy failed to follow its own [nondiscretionary] regulatory scheme” in two ways. (AR 116). First, Magneson argued that Manual 1611-020(1)(a) requires a DFC to be finalized prior to a service member’s Planned Rotation Date, and because the Commander of Navy Personnel Command did not approve the DFC until after his initial Planned Rotation Date of February 11, 2011, the Navy improperly ignored its own regulations. (AR 107) (citing Bureau of Navy Personnel Instruction 1610.10B, para 3-6(h)). Second, Magneson claimed that the DFC request was not forwarded from one level of the chain of command to the next within five working days, again in violation of the Manual, which provides that “[i]n the absence of unusual circumstances, the DFC request should be forwarded within 5 working days of receipt by each command in the routing chain.” (AR 108) (citing Manual 1611-020(11)(h)).
After having his promotion delayed, Magneson was removed from the Lieutenant Commander promotion list on December 7, 2011. (Am. Compl. ¶ 20). The Board denied Magneson’s application on March 15, 2012, on the grounds that “the evidence submitted was insufficient to establish the existence of probable material error or injustice.” (AR 1). Specifically, the Board noted that Manual 1611.020. (1)(a) states that a DFC is an administrative removal “before . . . [an officer’s] normal or planned rotation date, ” and because Magneson’s DFC was approved prior to the issuance of his transfer orders on May 3, 2011, there had been no violation of Navy regulations. (AR 2) (emphasis in original). The Board also found that the DFC provided a basis for removing Magneson from the promotion list, despite the fact that the officers in his chain of command recommended keeping him on the list. (Id.). Magneson then filed this suit in June 2012.
Magneson alleges that the Secretary of the Navy, through the Board, abused discretion, acted arbitrarily and capriciously, and contrary to regulation for two reasons. (Am Compl. ¶ 41). First, the Board did not address whether the Navy “failed to meet mandatory response dates required by its own procedural regulation” by not following the five-day rule in Manual 1611-020(11)(h). (Id.). Second, the Board failed to find that the Navy violated its own regulations when Navy Personnel Command approved Magneson’s DFC after his Planned Rotation Date. (Id.). With regard to the second issue, Plaintiff also alleges that the Board incorrectly concluded that “normal transfer” in Manual 1611-020(1)(a) is equivalent to “transfer orders, ” when nothing in the regulatory scheme supports this conclusion. (Id.). These allegedly arbitrary and capricious actions harmed Magneson by “delaying his career progression and ultimately causing him to be involuntarily separated from the Navy.” (Id. ¶ 42).
This court remanded the case for consideration of Magneson’s five-day rule allegation. The Board reaffirmed its denial of Magneson’s claim, finding first that the use of the word “should” in the five-day rule rendered the provision advisory, not mandatory. (AR 137). Further, the Board found any violation of the five-day rule harmless, as it did not affect the outcome of the DFC proceedings. (Id.). The Board noted that the rationale for a DFC, as discussed in Manual 1611-020(1)(b), is to remove an officer from his or her position when the officer’s “performance or conduct detracts from accomplishing the command’s mission, and the officer’s continuance in the billet can only negatively impact the command.” (Id.). The Board found that so as long as Magneson remained in his billet aboard the JAMES, and his Commanding Officer continued to believe that Magneson’s service there detracted from the mission, then Navy Personnel Command could properly approve the DFC up until the point at which Magneson transferred to a new duty station. (Id.). Thus since Magneson’s transfer orders were issued in May, Navy Personnel Command complied with Navy regulations by approving the DFC in March. (Id.).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). However, since the court reviews the Board’s decision under the Administrative Procedure Act, 5 U.S.C. § 706, the standard “set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record.” Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C. 2007). Instead, “[s]ummary judgment serves as the mechanism for ...