United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
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. 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.
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
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.
Governing Law and Regulations
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),
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.
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).
Factual and Procedural Background
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
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.”). Between 2005 and 2008, plaintiff
participated in air combat operations, including Operations
Iraqi Freedom and Enduring Freedom. Id. ¶ 10.
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.
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. AR 1514-15; AR 1547. On April 15, 2014,
the Secretary denied plaintiff's request for flight gate
waiver. AR 1513; AR 1550.
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.
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.
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. 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.
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.