United States District Court, District of Columbia
MARTHA A. WANCA, Plaintiff,
ERIC D. HARGAN, Defendant.
C. LAMBERTH UNITED STATES DISTRICT JUDGE
case concerns officer promotion in the U.S. Public Health
Service (PHS), a division of the Department of Health &
Human Services (HHS) and one of the country's seven
Martha Wanca asked PHS to waive a prerequisite for promotion.
When PHS refused, Wanca filed suit under the Mandamus Act and
the Administrative Procedure Act (APA), asking this Court to
force HHS to waive the prerequisite and to resolve
Wanca's related Equal Opportunity (EO) complaint.
flaws doom her claim. First, mandamus cannot mandate
discretionary government action. Second, APA relief is either
unavailable (because PHS did not act arbitrarily or
capriciously) or moot (because PHS already acted on
Wanca's EO complaint). The Court will grant the
government's summary judgment motion and deny Wanca's
A. The PHS Commissioned Corps
seeks to protect, promote, and advance our nation's
health and safety by responding to disasters, supporting care
to underserved populations, and overseeing cutting-edge
research. Led by the Surgeon General of the United States,
PHS organizes its 6500 officers into eleven
"professional categories": physicians, dentists,
nurses, therapists, pharmacists, health service providers,
environmental health professionals, dietitians, engineers,
veterinarians, and scientists. Commissioned Corps Instruction
(CCI) 122, 01 § 6-1 (2011),
these categories, promotion follows a rank grade like the
Navy, though it uses a different naming convention. Officers
move sequentially from "junior assistant" (akin to
ensign) to "assistant" (junior lieutenant) to
"senior assistant" (lieutenant) to "full"
(lieutenant commander) to "senior" (commander) to
"director" (captain). CCI 231.01 at app. (2018),
https:// dcp.psc.gov/ccmis/ccis/documents/CCI23l01.pdf. The
HHS Secretary sets the number of officers for each grade
based on PHS's anticipated needs, available funds, and
the officers already in each grade, as well as the
anticipated appointments, promotions, and retirements. 42
U.S.C. § 207(d).
U.S.C. § 211 governs the promotion process. Though it
tasks the President with filling in additional details via
regulation, see § 211(a), (k), the President
delegated this authority to HHS. See Exec. Order No.
11, 140 § 1(f), 29 Fed. Reg. 1637 (Jan. 30, 1964). HHS
publishes its regulations in the Commissioned Corps Issuance
System, available online at https://dcp.psc.gov/
The Promotion Process
211(a) identifies three kinds of potential promotions:
"permanent promotions based on length of service, other
permanent promotions to fill vacancies, or temporary
promotions." Each has a slightly different set of
requirements and procedures.
Permanent Promotions Based on Length of Service
Length-of-service-based permanent promotions occur
automatically once an officer serves a set time in a grade
and once the Annual Permanent Promotion Board (APPB) deems
them qualified. CCI 331.01 § 6-4 (2008),
Section 211(d)(2) contemplates length-of-service-based
permanent promotions to senior assistant grade after three
years as an assistant officer; to full grade after seven
years as a senior assistant officer; and to senior grade
after seven years as a full officer.
practice, noncompetitive promotions stop at the senior
assistant grade. As § 211(b) allows, the Surgeon General
limits full and senior grade promotion to filling vacancies.
CCI 331.01 §6-6(a).
Permanent Promotions to Fill Vacancies
officer must clear three hurdles to obtain a permanent
vacancy-filling promotion. First, like
length-of-service-based promotions, the APPB must deem the
candidate qualified. Id. § 6-4. Candidates
become eligible for APPB examination after spending a certain
time in their current grade. Id. § 6-2(a)(1).
Second, the APPB examines all eligible candidates, determines
which it will recommend for promotion, and ranks the
recommended candidates according to their capabilities and
performances. Id. § 6-5. Third, the APPB
forwards this ranking to the Surgeon General, who-based on a
predetermined cut-off-sends a final list to the Assistant
Secretary for Health. Id. § 6-6.
senior grade officer becomes eligible for APPB examination
four years after her permanent promotion to senior grade.
Id.-§ 6-2(a)(1)(a). But before an officer can
be permanently promoted, PHS policies require her to serve
one year in that grade on a temporary basis. Id.
§ 6-2(c). Put another way, PHS imposes a one-year
temporary trial period before an officer's permanent
promotion to a new grade. So it actually takes five years as
a senior grade officer to be eligible for promotion
examination: one year on a temporary basis, plus four years
on a permanent basis.
APPB examines eligible candidates annually. Id.
§ 6-4(a). It uses a standard rubric to assess the
candidate's performance reviews, professional
qualifications, advancement potential, prior service, and
response readiness. Id. §§ 6-4-6-5. From
this examination, the APPB lists candidates recommended for
promotion, ranking the recommended candidates according to
their average score. Id. § 6-5(c).
APPB's ranking goes to the Surgeon General, who verifies
the recommended candidates meet basic compliance
requirements, see Id. § 8-2, and applies a
predetermined cutoff score based on the total vacancies.
See § 211(c); CCI 331.01 § 6-6.
But before doing so, the Surgeon General can alter the
ranking at his discretion. See CCI 331.01 §
6.5(f), ("Notwithstanding the recommendation of the
promotion board, the SG . . . may rescind a board's
promotion recommendation of 'not recommend' when upon
evaluation it is determined that the officer's record
does not support such a recommendation."); id
§ 8-2(a) ("The SG will ensure that the final
approval list for permanent promotions is complete after
eliminating any officer . .. [w]ho, based on additional
information available to the SG is found either not qualified
or not suitable for promotion . . .."). The Surgeon
General sends his final recommendations to the Assistant
Secretary. Id. § 6-5(e).
a temporary promotion is even more complicated: an officer
must either clear multiple requirements for Annual Temporary
Promotion Board (ATPB) examination or be nominated for an
Exceptional Proficiency Promotion (EPP). See CCI
332.01 (2008), https://
eligible for ATPB examination, a senior grade officer must
have twenty-four years of Training and Experience Date (TED)
credit, nine years of active duty service as a commissioned
officer (including three years in PHS), and three years of
experience as a senior grade officer. Id. at app.
TED credit reflects the officer's relevant education and
experience, as well as her subsequent uniformed service. CCI
231.01 § 6-2(a)(1) (2018). For instance, a commissioned
officer with a Masters of Science in Nursing (MSN) receives
six years of TED credit for the ...