Sakievich v. United States

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Pending 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.

         BACKGROUND

         I. Governing Law and Regulations

         This 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.

         A 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).

         The 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).

         The 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.

         A 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] (“SECNAVINST 1420.1B”).

         In sum, 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.

         II. Factual Background

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         While 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.

         In 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.

         In 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.

         On 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.

         Plaintiff 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.

         In 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, 82, 84.

         On 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.

         In 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 23-24.

         III. Procedural History

         Plaintiff 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 18.

         On 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.

         On 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. Id.

         On June 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.

         On August 8, 2017, the Secretary of the Navy approved a six-month extension for consideration of plaintiff's requests, as permitted by 10 ...