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Wanca v. Hargan

United States District Court, District of Columbia

February 7, 2019

MARTHA A. WANCA, Plaintiff,
v.
ERIC D. HARGAN, Defendant.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

         This 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 uniformed services.

         Commander 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.

         But two 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 cross-motion.

         I. Background

          A. The PHS Commissioned Corps

         PHS 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), https://dcp.psc.gov/ccmis/ccis/ documents/CC122.01.pdf.

         Within 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).

         42 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/ ccmis/ccis/CCISToc.aspx?ShowTOC=Y.

         1. The Promotion Process

         Section 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.

         i. 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), https://dcp.psc.gov/ccmis/ccis/documents/ CCI331.01.pdf. 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.

         But in 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).

         ii. Permanent Promotions to Fill Vacancies

          An 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.

         A 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.

         The 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).

         The 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).

         iii. Temporary Vacancies

         Obtaining 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:// dcp.psc.gov/ccmis/ccis/documents/CCI332.01 .pdf.

         To be 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 ยง 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 ...


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