United States District Court, District of Columbia
HAROLD B. GILBERT, et al., Plaintiffs,
HEATHER A. WILSON, Secretary of the Air Force, Defendant.
A. HOWELL, CHIEF JUDGE
plaintiffs, eleven former Air Force officers who retired or
separated from active duty between 1990 and 1998
(collectively, “the plaintiffs”), seek judicial
review of the denial of their applications for retrospective
promotion by the Air Force Board for Correction of Military
Records (“AFBCMR” or “the Board”).
The Board determined that each application was submitted well
after the applicable three-year limitations period, declined
to waive that limitations period, and dismissed the
plaintiffs' applications as untimely. The plaintiffs then
initiated this lawsuit against the Secretary of the Air
Force, seeking a declaratory judgment that the Board's
decision not to waive the applicable limitations period was
in error. After this Court held that the Board's
decision not to waive the limitations period is subject to
judicial review, Gilbert v. James
(“Gilbert I”), 134 F.Supp.3d 42, 58
(D.D.C. 2015), the case was stayed to allow the Board to
conduct de novo reconsideration of the
plaintiffs' claims, Gilbert v. James
(“Gilbert II”), No. 14-cv-1364, 2016 WL
10721864, *3 (D.D.C. Jan. 4, 2016). The Board again denied
the plaintiffs' applications as untimely, and the parties
filed cross-motions for summary judgment. Def.'s Mot.
Summ. J. (“Def.'s Mot.”), ECF No. 37;
Pls.' Cross-Mot. Summ. J. (“Pls.' Mot.”),
ECF No. 38. For the reasons set out below, the Board's
decision was neither arbitrary nor capricious and,
accordingly, the defendant's motion is granted while the
plaintiffs' motion is denied.
statutory framework and legislative history of the relevant
statutes are laid out fully in this Court's previous
Memorandum Opinion on the defendant's motion to dismiss.
See Gilbert I, 134 F.Supp.3d at 43-46. The salient
points of that discussion are repeated here.
Secretary of the Air Force (“the Secretary”) is
authorized to convene promotion selection boards to recommend
active-duty officers for promotion. See 10 U.S.C.
§ 611. Following an initial promotion decision, the
Secretary is empowered to modify retrospectively a current or
former service member's military record when necessary
“to correct an error or remove an injustice, ”
id. § 1552(a)(1), and is authorized to
establish procedures governing such corrections, id.
§ 1552(a)(3)(A). See also Air Force Instruction
(“AFI”) 36-2603, Air Force Board for
Correction of Military Records, ¶¶ 1-2 (Mar.
5, 2012). Under these procedures, an officer seeking
modification of his or her military record must submit an
“Application for Correction of Military Record Under
the Provisions of Title 10, U.S. Code, Section 1552, ”
called a “DD Form 149, ” to the Board.
See AFI 36-2401, Correcting Officer and Enlisted
Evaluation Reports, Table 1, Row 3 (Feb. 20, 2004), ECF
No. 16-1; see also AFI 36-2406, Officer and
Enlisted Evaluation Systems, Table 10.1, Row 3 (Nov. 8,
2016). Generally, such applications must be filed
“within three years after discovering the error or
injustice, ” although the Board “may excuse a
failure to file within three years after discovery if it
finds it to be in the interest of justice.” 10 U.S.C.
§ 1552(b); see also AFI 36-2406 ¶ 10.5.1;
id. ¶ A2.4. To review these applications, the
Secretary is authorized, under 10 U.S.C. § 628, to
convene Special Selection Boards (“SSBs”). SSBs
consider petitioning officers' records, together with
“a sampling of the records of those officers of the
same competitive category, ” and make determinations as
to whether each petitioning officer should be recommended for
a retrospective promotion. 10 U.S.C. § 628(a)(2),
(b)(2); Antonellis v. United States, 723 F.3d 1328,
1334 (Fed. Cir. 2013).
2001, Congress amended 10 U.S.C. § 628 to provide for
judicial review of the Secretary's decisions to convene,
or decline to convene, SSBs and authorized the services to
promulgate regulations addressing, inter alia, any
“time limits applicable to the filing of an application
for [consideration by an SSB].” National Defense
Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107,
§ 503, 115 Stat. 1012, 1084 (2001); see also 10
U.S.C. § 628(g)-(j). Pursuant to this newly granted
authority, the Air Force promulgated an administrative
limitations period that parallels the statutory limitations
period found in 10 U.S.C. § 1552(b). Under these
regulations, applications for record corrections must be
submitted to the Board “within 3 years after the error
or injustice [giving rise to the application] was discovered,
or, with due diligence, should have been discovered.”
AFI 36-2603 ¶ 3.5. “An application filed later is
untimely and may be denied by the Board on that basis,
” id., but the Board “may excuse
untimely filing in the interest of justice, ”
id. ¶ 3.5.1.
The Plaintiffs' Claims
serving on active duty in the Air Force between 1990 and
1998, each of the plaintiffs was considered by at least one
promotion selection board and not selected for promotion. Am.
Compl. ¶¶ 15-25, ECF No. 11. During this period,
the military services provided certain equal opportunity
instructions to various boards charged with making personnel
decisions, including promotions, early retirement, and
selective retentions. Def.'s Mem. Supp. Mot. Dismiss
Pls.' Am. Compl. (“Def.'s Mem. Mot.
Dismiss”) at 3, ECF No. 13. In particular, the Air
Force provided personnel boards with a Memorandum of
Instruction (“MOI”) that included language
directing the boards to be sensitive to race and gender when
evaluating officers. Id.; Am. Compl. ¶¶
2002, the Federal Circuit held that the Air Force's use
of this MOI to help guide the selection of officers for
involuntary termination pursuant to a 1993 reduction-in-force
mandate constituted a racial and gender classification
subject to heightened scrutiny under the equal protection
guarantee of the Fifth Amendment. Berkley v. United
States, 287 F.3d 1076, 1091 (Fed. Cir.
2002). Since that time, and relying on
Berkley, the Board has opined that the MOI language
addressing race and gender considerations was
unconstitutional. Am. Compl. ¶¶ 30- 31; see
also Ricks v. United States, 65 Fed.Cl. 826, 831 n.6
(2005) (noting that “[t]he Government does not oppose
the entry of a finding by this Court that the instructions
were unlawful for those reasons stated in
Berkley”) (internal quotation marks, citation,
and alteration omitted). Following Berkley, many
current and former service members sought reevaluation of
their military records without the equal opportunity MOI.
See generally, e.g., Christian v. United
States, 337 F.3d 1338 (Fed. Cir. 2003) (Army selective
early retirement board); Baker v. United States, 127
F.3d 1081 (Fed. Cir. 1997) (Air Force selective early
retirement board); Paylor v. Winter, 600 F.Supp.2d
117 (D.D.C. 2009) (Navy promotion selection board);
Ricks, 65 Fed.Cl. 826 (Air Force promotion selection
board); Christensen v. United States, 65 Fed.Cl. 625
(2005) (Air Force selective early retirement board);
Alvin v. United States, 50 Fed.Cl. 295 (2001) (Air
Force selective early retirement board).
number of years following Berkley, the Board
routinely exercised its statutory and regulatory authority to
waive the applicable three-year limitations period and
regularly convened SSBs to review untimely applications
submitted by officers who had been considered by promotion
boards operating under the equal opportunity MOI. Am. Compl.
¶¶ 37-38; Def.'s Mem. Mot. Dismiss at 6. At the
end of 2011, however, the Board changed course and
consistently declined to waive the three-year limitations
period when the sole basis for relief asserted by the
petitioner was the Air Force's use of the MOI. Def.'s
Mem. Supp. Mot. Summ. J. (“Def.'s Mem.”) at
2-3, ECF No. 37; Am. Compl. ¶ 41 (“It appears from
the records that up to November 28, 2011 all Berkley
cases were granted by the AFBCMR. After that date all
Berkley cases were denied.”) (emphasis in
original). Taking into account the passage of nearly a decade
since Berkley, and citing its efforts to manage its
caseload in conformity with statutory time constraints, the
Board concluded that continued waivers of the limitations
period for Berkley cases were no longer “in
the interest of justice.” Administrative Record
(“AR”) at 15, ECF No. 36-2.
May 2011 and December 2012, nearly ten years after
Berkley and more than a decade after each plaintiff
had separated from the Air Force, each plaintiff filed a DD
Form 149 “asking for a correction of their military
record because of their unconstitutional treatment in
promotion selection.” Am. Compl. ¶ 34. Each
plaintiff requested, pursuant to § 628(b), referral of
his record-correction request to an SSB so that the SSB could
reassess his qualifications for promotion and consider him
for retrospective promotion without regard to his race and
gender. Id. ¶¶ 33-35; AR at 18, 85, 157,
233, 303, 376, 449, 516, 583, 654, 723.
Board denied each plaintiff's request as untimely.
See AR at 16, 82, 153, 230, 300, 374, 446, 514, 581,
651, 721. While conceding that the plaintiffs were considered
by promotion selection boards operating under the equal
opportunity MOI, Am. Compl. ¶ 36, the Board declined to
waive the statutory limitations period, citing the
Board's responsibility to manage its caseload under
statutory time constraints, its determination that the
plaintiffs failed to engage in due diligence in pursuing
their applications, and its conclusion that the
plaintiffs' significant delay in filing their
applications rendered retrospective review of their records
by an SSB impractical. Id. ¶¶ 39, 45;
see also, e.g., AR at 14-15. The plaintiffs then
sought reconsideration of these determinations, arguing for
the first time that the Board acted arbitrarily and
capriciously by “refus[ing] to consider similar [ ]
precedence” and by refusing to continue granting
waivers of the limitations period for petitioners raising
Berkley claims. AR at 34. Notably, the plaintiffs
identified one case similar to theirs (the “comparator
filer's case”) in which a waiver was granted, even
though that application was filed after the earliest-filed
application in this case. Id. at 35; Pls.' Mem.
Supp. Cross-Mot. Summ. J. & Opp'n Def.'s Mot.
Summ. J. (“Pls.' Mem.”) at 3, ECF No. 38-2.
After the Board summarily denied their requests for
reconsideration, Am. Compl. ¶ 46, AR at 41, the
plaintiffs filed the instant action on August 11, 2014.
September 22, 2015, this Court granted in part and denied in
part the defendant's motion to dismiss for lack of
subject-matter jurisdiction, concluding that the Board's
“decision not to waive the limitations periods
applicable to the plaintiffs' applications to convene
SSBs is subject to judicial review under 10 U.S.C. §
628(g).” Gilbert I, 134 F.Supp.3d at 58. This
case was stayed, at the defendant's request and over the
plaintiffs' objections, on January 4, 2016, “to
allow for reconsideration de novo by the Air Force
Board for Correction of Military records, of the
plaintiffs' petitions, ” Gilbert II, 2016
WL 10721864, at *3, which would enable the Board to consider,
for the first time, the plaintiffs' argument that the
Board had disregarded precedent when changing its waiver
policy, see Id. at *2. On or about May 13, 2017, the
plaintiffs received word of the Board's decisions on
reconsideration, again denying relief for each plaintiff.
See Joint Status Report at 1, ECF No. 34. Regarding
the precedent argument, the Board noted that “the Board
relies on the decision date, not the filing date, to set
precedent for the Board's later decision” and that
“once the decision was made to deny relief,
the Board has consistently followed that precedent.” AR
at 7-8. The parties then filed the pending cross-motions for
summary judgment, which are now ripe for review.
to Federal Rule of Civil Procedure 56, summary judgment may
be granted when the court finds, based on the pleadings,
depositions, affidavits, and other factual materials in the
record, “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), (c); see also
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per
curiam); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). “A genuine issue of material fact
exists if the evidence, ‘viewed in a light most
favorable to the nonmoving party, ' could support a
reasonable jury's ...