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Stewart v. Spencer

United States District Court, District of Columbia

November 8, 2018

RICHARD V. SPENCER, Secretary of the Navy, in his official capacity, Defendant.



         Plaintiff Nicholas Stewart, a Captain of the United States Marine Corps, filed this action against the Secretary of the Navy in his official capacity, challenging, among other things, the Secretary's denial of his request for an Aviation Career Incentive Pay (“ACIP”) flight gate waiver.[1] On May 1, 2017, the Court ruled that since the Secretary had not set forth the reasons for his action, the Court could not find it to be reasonable and supported by the record. Therefore, it remanded the matter to the Secretary for further consideration and clarification.

         On remand, the Secretary again denied plaintiff's flight gate waiver request. Presently before the Court is plaintiff's second motion for summary judgment, in which plaintiff argues that the Secretary acted arbitrarily and capriciously in his denial. Defendant has filed a cross- motion for summary judgment asserting that the Secretary's decision is entitled to deference, and that it was in accordance with the applicable laws and regulations.

         After reviewing the parties' motions, including the attachments thereto, the administrative record, and the relevant authorities, the Court will grant defendant's motion for summary judgment, and plaintiff's motion will be denied. While plaintiff is understandably chagrined by the decision, given all of the circumstances, the Court cannot conclude that there is any basis to overturn this decision that fell within the Secretary's discretion to make.


         I. Governing Law and Regulations

         “A member of a uniformed service” is entitled to “aviation career incentive pay . . . for the frequent and regular performance of operational or proficiency flying duty required by others.” 37 U.S.C. § 301a(a). Aviation Career Incentive Pay (“ACIP”) is “restricted to regular and reserve officers who hold, or are in training leading to, an aeronautical rating or designation and who engage and remain in aviation service on a career basis.” Id. § 301a(a)(2). Under this statute, “an officer must perform the prescribed operational flying duties . . . for 8 of the first 12, and 12 of the first 18 years of the aviation service of the officer” to be eligible for continuous monthly incentive pay. Id. § 301a(a)(4). The “screening point at the end of specific periods of aviation service (normally at the 12 and 18-year marks) used to determine eligibility for continuous ACIP” is called a “flight gate.” Secretary of the Navy Instruction 7220.87 (“SECNAVINST”) Enclosure (1), ¶ 7.

         The Secretary of the Navy “may permit, on a case by case basis, an officer to continue to receive continuous monthly incentive pay despite the failure of the officer to perform the prescribed operational flying duty requirements during the prescribed periods of time so long as the officer has performed those requirements” for at least six years of aviation service. 37 U.S.C. § 301a(a)(5); see also SECNAVINST 7220.87 ¶ 4 (“The Aviation Career Improvement Act of 1989 authorized the Secretary of the Navy . . . to waive ACIP flight gate requirements for aviators who are unable to meet their flying gates due to reasons beyond their control.”). This action is typically called a “flight gate waiver.” See generally SECNAVINST 7220.87.

         Once a request for a waiver has been submitted, the waiver package is routed through the chain of command to the Secretary of the Navy. SECNAVINST 7220.87 ¶¶ 5(b), (d). Once the waiver package is received by the Assistant Secretary of the Navy (Manpower and Reserve Affairs), “the flight gate waiver request package will be reviewed for content, validity, and rationale and forwarded to [the Secretary of the Navy] with a recommendation to approve, disapprove, or to be returned to Navy or Marine Corps for further action.” Id. ¶ 5(e).

         II. Factual and Procedural Background

          The factual and procedural background of this case are laid out in detail in the Court's Memorandum Opinion granting in part and denying in part defendant's original motion for summary judgment. Stewart, 251 F.Supp.3d at 141-55. Therefore, the Court will address the facts only briefly here.

         Plaintiff Nicholas Stewart has served in the United States Marine Corps since 2001, when he graduated from the Naval Academy. Second Am. Compl. [Dkt. # 31] ¶¶ 5-6 (“Second Am. Compl.”).[2] Between 2005 and 2008, plaintiff participated in air combat operations, including Operations Iraqi Freedom and Enduring Freedom. Id. ¶ 10.

         On December 12, 2008, while serving as a Captain in the Marine Corps, plaintiff was charged with aggravated sexual assault and aggravated assault. Second Am. Compl. ¶ 14. Plaintiff successfully moved to sever the charges, and he was subsequently acquitted of aggravated assault, but convicted of aggravated sexual assault. Id. ¶¶ 21-22. Plaintiff was sentenced to total forfeiture of pay and allowances, two years confinement, and a dismissal. Id. ¶ 23. He appealed the conviction to the United States Court of Appeals for the Armed Forces, and the court found that his second trial violated the Double Jeopardy Clause of the Fifth Amendment. Id. ¶¶ 27-30. On April 23, 2012, the court set aside the conviction and sentence and dismissed the charge with prejudice. Id. ¶ 30.

         On January 9, 2014, plaintiff requested a waiver of the flying requirement necessary to achieve the “Gate 1 flight gate” and retain his ACIP. Admin. Record [Dkt. # 34] (“AR”) at 1556-57. The request summarized his flight data, showing that he had achieved a total of 72 months of flying (“MOF”) out of the necessary 96. AR 1556. On his waiver application, he attributed his inability to meet the flying requirement to the unconstitutional conviction, and stated that but for those circumstances, he “would have been able to accumulate the 23 months of flying duty required” to reach Gate 1. AR 1557. The Marine Corps endorsed plaintiff's request, AR 1554-55, and on February 21, 2014, the Deputy Commandant, Manpower and Reserve Affairs (“M & RA”), sent an action memo to the Secretary of the Navy “strongly recommend[ing] approval.” AR 1551. The Assistant Secretary of the Navy (M & RA), though, sent an action memo to the Secretary recommending disapproval of the application, in which he noted that plaintiff was set to be discharged because he twice failed to achieve promotion.[3] AR 1514-15; AR 1547. On April 15, 2014, the Secretary denied plaintiff's request for flight gate waiver. AR 1513; AR 1550.

         On November 4, 2014, plaintiff submitted a second request for a waiver of the MOF requirement. AR 1450-52. Again, the Marine Corps endorsed the request, and the Deputy Commandant recommended approval. AR 1446-49. This time, the Assistant Secretary's action memo to the Secretary stated that plaintiff's “waiver request [was] within norms and appropriate, ” and that plaintiff was no longer facing a discharge. AR 1442-43. But on February 12, 2015, the Secretary of the Navy disapproved plaintiff's second request for a flight gate waiver. AR 1439. The Secretary did not set forth any reasons for his decision. Id.

         On January 18, 2016, plaintiff filed his second amended complaint in this lawsuit, challenging three decisions made by the Secretary of the Navy, only one of which is relevant here: the claim that the Secretary acted arbitrarily and capriciously in denying the second request for the flight gate waiver. Second Am. Compl. ¶¶ 56-57 (Count 1). Both parties moved for summary judgment. See Def.'s Mot. for Summ. J. [Dkt. # 35]; Pl.'s Cross-Mot. for Summ. J. [Dkt. # 37]. After reviewing the record, the Court found that because the Secretary did not provide a “rational connection between the facts found and the choice made, ” the decision was arbitrary and capricious. Stewart, 251 F.Supp.3d at 156-57. The Court denied defendant's motion for summary judgment as to this count, and on May 1, 2017, remanded the decision to deny plaintiff's ACIP flight gate waiver request to the Secretary of the Navy for further consideration. Id.

         On December 19, 2017, the Secretary of Navy denied plaintiff's request for ACIP flight gate waiver for a third time. See Secretary of the Navy Memo [Dkt. # 56-1] (“Sec'y Memo”). The Secretary found that “approving this request does not meet the needs of the service.” Id. ¶ 2. He stated that “Captain Stewart's entitlement to ACIP ended when, upon reaching 12 years of service, he had not completed 9 years of prescribed operational flying duties.” Id. To be eligible for a waiver, one must have not less than six years of qualifying service, and the Secretary observed that plaintiff had barely met the requirement because he had completed only six years and fifteen days of aviation service. Id. Thus, according to the Secretary, plaintiff's qualifying duties are almost three years short of the statutory entitlement to ACIP. Id. The Secretary observed that plaintiff's failure to accumulate the necessary experience was not entirely attributable to the pendency of the criminal proceedings, and he pointed to the fact that plaintiff “was not in flight status” between June 5, 2008 and September 18, 2009, and between April 12, 2012 and November 4, 2014.[4] Id. ¶ 4. Finally, the Secretary observed that he was not inclined to exercise his discretion to grant a waiver because plaintiff's personnel records revealed that plaintiff has consistently ranked in the bottom two-thirds of his peer group and has been evaluated as performing better than only about 18% of his peers. Id. ¶ 5.

         On May 24, 2018, plaintiff moved for summary judgment claiming that the Secretary acted arbitrarily and capriciously and contrary to law in rendering his decision. See Mem. in Supp. of Pl.'s Mot. for Summ. J. [Dkt. # 55] (“Pl.'s Mem.”). On June 15, 2018, defendant opposed the motion and filed a cross-motion for summary judgment in its favor. ...

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