United States District Court, District of Columbia
THOMAS V. SAKIEVICH, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Lieutenant Colonel Thomas V. Sakievich initially brought this
action against the United States seeking to set aside certain
decisions of the Department of the Navy's Board for the
Correction of Naval Records (“BCNR”) as
arbitrary, capricious, unsupported by evidence, and contrary
to law, pursuant to 10 U.S.C. § 1552 and the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 701 et seq. Compl. [Dkt. # 1] ¶ 1. The
Court dismissed the case for lack of jurisdiction because
plaintiff had failed to exhaust his administrative remedies.
Sakievich v. United States, 160 F.Supp.3d 215
(D.D.C. 2016). Plaintiff then undertook to complete the
administrative process: he requested that the Secretary of
the Navy convene a Special Board to review four decisions
denying program selections based upon his naval record in
1991, 1992, 1996, and 1999; and, if the Special Board decided
in his favor, he requested the Secretary also convene a
Special Selection Board to review two decisions denying
officer promotions in 2004 and 2005. Am. Compl. [Dkt. # 33]
¶ 96. The Assistant Secretary of the Navy, under
authority delegated to him by the Secretary, denied both of
these requests on December 21, 2017, and on April 6, 2018,
plaintiff filed an Amended Complaint in this Court seeking
review of those decisions. Id. ¶ 100.
before the Court are the parties' cross-motions for
summary judgment. After reviewing the parties' motions,
including the attachments thereto, the administrative record,
the supplemental administrative record, and the relevant
authorities, the Court will grant defendant's motion for
summary judgment, and plaintiff's motion will be denied.
Governing Law and Regulations
case involves two decisions made by the Assistant Secretary
of the Navy, Manpower & Reserve Army, under decisional
authority delegated to him by the Secretary of the Navy: (1)
the decision denying plaintiff's request to convene a
Special Board to review the non-select decisions of the
Full-Time Support (“FTS”)/Active Reserve
(“AR”) program selection boards of 1991, 1992,
1996, and 1999; and (2) the decision denying plaintiff's
request to convene a Special Selection Board to review the
non-select decisions of the FY 2005 and FY 2006 Colonel
promotion selection boards. Am. Compl. ¶ 100.
Special Board is defined as:
[A] board that the Secretary of a military department
convenes under any authority to consider whether to recommend
a person for appointment, enlistment, reenlistment,
assignment, promotion, retention, separation, retirement, or
transfer to inactive status in a reserve component instead of
referring the records of that person for consideration by a
previously convened selection board which considered or
should have considered that person.
10 U.S.C. § 1558(b)(1)(A). The statute provides that a
board convened to correct military records, under §
1552, can be designated a Special Board by the Secretary of
the Navy. Id. § 1558(b)(1)(B). A Special Board
does not include a Special Selection Board, which is convened
to review decisions made by promotion boards under § 628
or § 14502. Id. § 1558(b)(1)(C).
statute also states that a decision not to convene a Special
Board may be reviewed by a federal court, which can set aside
the decision “only if the Court finds the determination
to be “(i) arbitrary or capricious; (ii) not based on
substantial evidence; (iii) a result of material error of
fact or material administrative error; (iv) or otherwise
contrary to law.” Id. § 1558(f)(2)(A).
statute goes on to provide that “[t]he Secretary of
each military department shall prescribe regulations to carry
out this section[, ]” id. § 1558(e)(1),
including “[t]he circumstances under which
consideration of a person's case by a special board is
contingent upon application by or for that person, ”
and “[a]ny time limits applicable to the filing of an
application for such consideration.” Id.
§ 1558(e)(2). The Secretary has not yet implemented
regulations to carry out this statute.
Special Selection Board, by contrast, is convened to
determine whether an officer should have been selected or
considered for a promotion by a promotion board. See
10 U.S.C. §§ 628, 14502. A federal court may set
aside a decision not to convene a Special Selection Board
“[i]f a court finds the determination to be arbitrary
or capricious, not based on substantial evidence, or
otherwise contrary to law[.]” 10 U.S.C. §
14502(h)(1). This statute also sets forth that decisions of
the Secretary of the Navy pursuant to this statute will be
made “under regulations prescribed by the Secretary of
Defense.” Id. § 14502(b)(1); see
also 10 U.S.C. § 628(j)(1) (setting forth that the
Secretary “shall prescribe regulations to carry out
this section” and that they must be “approved by
the Secretary of Defense”). The Department has
promulgated regulations implementing the statute concerning
Special Selection Boards. See Secretary of the Navy
Instruction 1420.1B, Ex. A to Def.'s Mot. [Dkt. # 36-1]
a Special Board may be convened to address a wide variety of
issues that “selection boards” consider. A
Special Selection Board may be convened for the more limited
purpose of reviewing decisions of “promotion
boards” and specifically, officer promotions. Both
statutes provide that a court may only set aside a
determination by the Secretary if it is arbitrary or
capricious, not based on substantial evidence, or otherwise
contrary to law. But the statute concerning the convening of
a Special Board has no implementing regulations, while the
Special Selection Board statute does.
is a retired United States Marine Corps Lieutenant Colonel
with a long history of military service, and his original
complaint contained a number of challenges to decisions made
by the Marine Corps with regard to his military record and
his terms of service. Am. Compl. ¶¶ 2, 8-91
(setting forth the facts contained in the original
complaint). The Court will summarize only that portion of the
factual background and procedural history that is relevant to
resolving the pending motions for summary judgment.
enlisted in the Marine Corps on April 17, 1975 and served
four active duty years in the infantry, obtaining the rank of
Sergeant. Administrative Record [Dkt. # 22]
(“AR”) 96, 514- 17. From April 1979 through April
1981, he served in the Marine Corps Reserve. AR 96. In
December 1982, he graduated from the Marine Corps Officer
Candidate School and was commissioned on active duty as a
Second Lieutenant. AR 526-28.
March 1, 1987, plaintiff began a two-year tour in the
Full-Time Support (“FTS”) program, a Marine Corps
Reserve program which placed reservists on active duty orders
for periods of up to four years. AR 614, 640. He again
received largely positive Fitness Reports throughout this
period and was promoted to Captain. AR 159-62, 660-79.
However, plaintiff believed that some of the Fitness Reports
were “erroneous and unjust, ” and on January 14,
1991, he asked the BCNR to remove two of the Fitness Reports
from his record. AR 46-49, 346-81. The BCNR referred this
request to the Performance Evaluation Review Board
(“PERB”). AR 80.
that referral was pending, plaintiff applied for another
active duty tour in the FTS program, and the FTS Selection
Board was convened on March 12, 1991. AR 641-46. At that
time, plaintiff's military record still contained the two
reports plaintiff had petitioned to have removed, and it was
also missing a positive report that plaintiff had previously
resubmitted to the Marine Corps. AR 176. Despite the fact
that the PERB found in plaintiff's favor and ordered the
two reports removed from his record on March 13, 1991, the
FTS Selection Board was not notified of those changes. AR 81,
170, 691. On April 2, 1991, the FTS Selection Board denied
plaintiff's application for an extension on FTS. AR 82.
The Selection Board stated “[c]ompetition was very
keen. Many qualified individuals were considered and only the
most highly qualified were chosen.” Id.
Plaintiff attributes his non-selection to the failure to
correct his military record, and states that he
“protested the incorrect findings of the FTS Selection
Board, ” but “was notified by Marine Corps
seniors that he had no recourse.” He was honorably
released from active duty on August 31, 1991. Am. Compl.
¶¶ 36-37; AR 94-95.
March 1992, plaintiff received a copy of his military record,
and he discovered that records were either missing or
incorrect. AR 150, 300. He repeatedly contacted the Marine
Corps Headquarters in an effort to correct his record, and on
May 28, 1992, he reapplied for the FTS program and included
the missing documents as part of his application, along with
“numerous supporting recommendations” from his
superiors. AR 297-98, 300. On August 6, 1992, plaintiff was
notified that he had been selected as an alternate for the
FTS program. AR 108, 406, 623.
September 1992, at the end of his contracted period of
service, plaintiff was again honorably released from active
duty. AR 200; Am. Compl. ¶ 47. In 1993, he obtained
civilian employment and continued his reserve service. AR
200; Am. Compl. ¶ 48. In September 1994, he was promoted
to Major. AR 200; Am. Compl. ¶¶ 46, 49-50. Between
July 1995 and December 1995, plaintiff again requested a copy
of his military record and undertook significant efforts to
locate and provide records that were missing from his file.
AR 109; Suppl. Administrative Record [Dkt. # 35]
(“Suppl. AR”) 180. He asserts that he also
contacted Marine Corps officials to voice his concerns that
the records that were submitted to the FTS Selection Boards
in 1991 and 1992 were incomplete, and that the omissions
affected his applications. Am. Compl. ¶ 54.
December 18, 1995, plaintiff applied to the Active Reserve
(“AR”) program, which had replaced the FTS
program that year. Am. Compl. ¶¶ 16 n.2, 55. On
February 15, 1996, he was notified that he did not possess
“a grade and/or ‘hard-skill' MOS [Military
Occupational Specialty] match” for the AR program, and
would be considered “as an alternative.” AR 110.
Shortly thereafter, plaintiff discovered that the two Fitness
Reports that had been ordered removed by the PERB in March
1991 were still included in his file and had been considered
by the AR Accession Board. AR 112. Plaintiff attempted to
correct this error, but in March 1996, he was informed that
he was not selected for the AR program. Suppl. AR 183; Am.
Compl. ¶¶ 58-59.
continued his reserve service, and he reapplied for the AR
program on July 21, 1999, see Suppl. AR 184-85, but
he was not selected because “[t]he highest grade the AR
program would allow were specific flight trained
Majors.” Am. Compl. ¶¶ 60-63; AR 39. On
August 1, 1999, plaintiff was promoted to Lieutenant Colonel,
and in April 2000, a senior Marine Corps official
specifically requested that the rank requirement be waived,
and that plaintiff be approved for active duty with the AR
program. Suppl. AR 188. On August 9, 2000, the next AR
Accession Board convened, and plaintiff was selected for the
AR program. AR 124-25; Suppl. AR 189. However, he was
informed that accepting the assignment “would
essentially forfeit [his] opportunity to be promoted to the
rank of Colonel in the AR, ” because he would be
compared to Marines who had more years of experience in the
program. Am. Compl. ¶ 67 & n.11; AR 119- 23. He
accepted the AR assignment in September 2000. Am. Compl.
¶¶ 67 n.11, 69; Suppl. AR 195-96.
January 2003, plaintiff applied for career designation in the
AR program, meaning he would no longer need to reapply to the
program, and his request was approved. AR 126. In August
2003, plaintiff applied for promotion to Colonel, but in
October 2003, he learned that he did not receive the
promotion. Am. Compl. ¶ 75. In his view, this was due to
“his fragmented career, late reassignment back to the
AR (formerly FTS), [the Marine Corps Headquarters']
mishandling of his professional records, and his multiple
forced moves from one promotion track to another.”
Id. He reapplied for the promotion in September
2004, but was again rejected. Id. ¶¶
78-79. Plaintiff retired on November 1, 2006 because of his
two non-selections to Colonel. Id. ¶¶ 81,
September 27, 2010, plaintiff was advised that as part of his
civilian employment, he could petition the BCNR for relief of
“over seven lost years of active duty with the FTS/AR
program, due to the mishandling of his professional files,
” Am. Compl. ¶¶ 85-86, and on November 15,
2010, he petitioned the BCNR for relief. AR 34-41, 338-39.
The Marine Corps Headquarters Reserve Affairs Division issued
an Advisory Opinion to the BCNR on February 11, 2011,
recommending that plaintiff's request be denied on the
grounds that he “was not competitive to be assigned to
the FTS program in 1991 nor the AR program in 1996.” AR
287. Plaintiff submitted a rebuttal to that opinion on March
15, 2011, AR 140-44, but on April 5, 2011, the BCNR denied
his request for relief, stating that “the evidence does
not show that you[r] non-selection for the program was
erroneous or unjust or that any fitness reports should be
removed from your record.” AR 180-81.
January 2013, plaintiff requested that the BCNR reconsider
his request, and he submitted new evidence in support of his
petition, including statements from several superior officers
who had previously served as members of a selection board. AR
26, 31, 191-281 (enclosures to his petition). The BCNR denied
his request for reconsideration on February 20, 2013. AR
initiated this action on October 7, 2014. See Compl.
He asserted that the BCNR's conclusions were arbitrary
and capricious, unsupported by substantial evidence, based on
material error, and that the Marine Corps Headquarters was
derelict in its duty to maintain accurate records.
Id. ¶¶ 92-101. He asked the Court to set
aside the Board's decision and remand the case to the
Board directing it to amend plaintiff's military record
and promote him to Colonel. See Compl., Relief, at
March 31, 2015, defendant moved to dismiss plaintiff's
claims under Federal Rule of Civil Procedure 12(b)(1),
arguing that plaintiff's requests for relief were not
justiciable and that he failed to exhaust his administrative
remedies as required by 10 U.S.C. § 1558(f). Def.'s
Mot. to Dismiss [Dkt. # 9] at 10-16. On February 5, 2016,
this Court granted defendant's motion, finding that it
could not award the relief plaintiff sought and did not have
subject matter jurisdiction because plaintiff had failed to
exhaust his administrative remedies. Sakievich, 160
F.Supp.3d at 225-26. Plaintiff appealed this decision on
April 4, 2016. Notice of Appeal [Dkt. # 27]. During the
pendency of the appeal, plaintiff undertook an administrative
exhaustion process, and the parties jointly moved to hold the
case in abeyance in the D.C. Circuit. Joint Status Report
[Dkt. # 31] (“Joint SR”); Suppl. AR 61-62.
December 23, 2016, plaintiff sent a request to the Secretary
of the Navy to convene a Special Board pursuant to 10 U.S.C.
§ 1558 to review his non-selection by the 1991 and 1992
FTS program selection boards and the 1995 and 1999 AR program
selection boards on the grounds that his non-selections were
due to “repeated mishandling of his official military
personnel file” which resulted in his file having
incomplete or inaccurate information. Suppl. AR 1. Plaintiff
also requested that, in the event that the Special Board
determined that he was qualified for those programs, the
Secretary then convene a Special Selection Board to review
his 2004 and 2005 non-selections to Colonel in the AR.
1, 2017, the Director of the Marine Corps Headquarters
Reserve Affairs Division (“HQMC RA”) issued a
memorandum to the Secretary of the Navy recommending denial
of plaintiff's request for a Special Board because
plaintiff “failed to demonstrate that there was an
irregularity, error, or injustice in the conduct” of
the FTS/AR program selection boards. Suppl. AR 526.
Specifically, the Director observed that plaintiff was not
selected by the 1996 selection board because he “did
not possess the skills that the AR program was seeking,
” and he was not selected by the 1999 selection board
because at that time “[plaintiff] was a senior Major
and the AR Program was seeking more junior officers.”
Id. at 523. The Director further stated:
“[plaintiff's] military record was simply not
strong enough to warrant his selection by the 1991, 1992,
1996, or 1999 FTS or AR boards, ” id. at 524,
and that plaintiff had “failed to demonstrate why the
Marine Corps should conduct a special board in the interest
of justice when over 17 years have passed since the 1999 AR
Program selection board.” Id. at 526.
August 8, 2017, the Secretary of the Navy approved a
six-month extension for consideration of plaintiff's
requests, as permitted by 10 ...