CALLOWAY v. BROWNLEECALLOWAY v. BROWNLEE
The plaintiff, a retired noncommissioned officer (“NCO”) of the United States Army (“Army”), brings this action contending that the Army improperly denied his request to remove two Non-Commissioned Officer Evaluation Reports1 from his personnel file in violation of the Administrative Procedure Act,
I. Background
(A) Regulatory Framework
The evaluation of noncommissioned officers is governed by Army Regulation (“Army Reg.”) 623-205 (April 30, 1992), which establishes the Noncommissioned Officer Evaluation Reporting System (“NCOERS”). The regulation provides for the “preparation, processing [and] submi[ssion]” of Noncommissioned Officer Evaluation Reports (“NCOER”), whose purpose is to, in part, “ensure the selection of the best qualified noncommissioned officers to serve in positions of increasing responsibilities by providing rating chain view of performance/potential for use in centralized selection . . . .” Army Reg. 623-205 § 1-5(a)(2). The information contained in these reports is one factor used as the basis for making personnel decision, including school selections, promotions, and the assignment of military occupational speciality classifications. Id. Each NCO is evaluated by both a rater, who is generally the NCO’s immediate supervisor, id. § 3-5(a)(1), and a senior rater, who is someone who is higher in the chain-of-command than the rater. Id. § 3-7(a)(1). The primary responsibility of the rater is to evaluate the NCO’s duty performance and professional development, id. § 3-6(a), while the
Pursuant to this evaluation system, report information is completed on DA Form 2166-7, the NCO Evaluation Report. Id. § 6-1 & pp. 27-28. This evaluation form contains a number of sections in which various attributes of an NCO are evaluated. For example, in Part IV, raters assess whether the NCO satisfies certain values, i.e., dedication, commitment, discipline, honesty, and courage. Id. at 27. Also in Part IV, the rater evaluates the NCO’s competence, physical fitness and military bearing, leadership, training, and responsibility and accountability. Id. at 28. In each of these categories, the rater determines whether the NCO merits a rating of “excellence,” “success,” “needs some improvement,” or “needs much improvement.” Id. In addition, in Part V, the rater assesses the NCO’s overall performance and indicates whether the NCO’s overall potential for promotion and/or service in positions of greater responsibility is “among the best,”5 “fully capable,”6 or “marginal.”7 Id. at 28. In addition, the senior rater assesses the NCO’s overall performance and the NCO’s overall performance for promotion and service in positions of greater responsibility, and assigns numerical scores to the evaluations. Id. A rating of “1”, “2”, or “3” is considered a “successful” or “superior” rating, with “1” being the
Such evaluations must occur at least annually, however, if certain qualifying events occur, the evaluations must be completed more often. Id. § 2-7(a). For example, “[a] report will be submitted whenever the designated rater is changed as long as the minimum rater qualifications are met.” Id. § 2-8(a) (“change-of-rater evaluation”). Rater changes occur if either the rater or the NCO is reassigned, released from active duty, or if the rater dies, is relieved, reduced, AWOL, declared missing, or becomes incapacitated. Id. § 2-8(a)(1)-(5). In addition, an NCOER must be conducted if an NCO is being relieved of his or her duty for cause.
Relief-for-cause is defined as the removal of a NCO from a rateable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army.
Id. § 2-10 (“relief-for-cause evaluation”). “[R]elief of an individual for cause is one of the most serious steps taken. It is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate under the circumstances.” Army Reg. 600-20 § 2-15 (March 30, 1988).
An NCO has a number of procedural channels available to challenge an adverse NCOER. For example, an NCO can request a Commander Inquiry to determine whether an NCOER was “illegal, unjust, or otherwise in violation of [Army Regulations.]” Army Reg. 623-205 § 2-15. Moreover, an NCO may appeal an NCOER to the Enlisted Special Review Board (“ESRB”), which hears appeals when claims are made alleging substantive inaccuracy in an evaluation or
(B) Factual Background
In 1974, the plaintiff enlisted in the Army as an active duty member. Compl. ¶ 1. Initially, the plaintiff trained as an Automated Data Processing specialist. Id. However, in October 1983, the plaintiff, who was then a Staff Sergeant, became an Army recruiting specialist. Id. ¶ 2. From 1983 through most of 1985, the plaintiff was a Field Recruiter at various recruiting stations in the “Seattle Washington Recruiting Battalion.” Id. During this time, the plaintiff received an award for Top New Recruiter in 1984, and was “commended” as Top Recruiter in the battalion in 1985. Id. In 1985, the plaintiff was promoted to Sergeant First Class. Id. ¶ 3. In September 1985 and until January 1987, the plaintiff was the commander of a Field Recruiting Station in the “Seattle Washington Recruiting Battalion.” Id. ¶ 4. Following this assignment, in January 1987, the plaintiff became a Recruiting Trainer at the Army Recruiting Training Brigade
Following his 1988 assignment to the Seattle position, the plaintiff was transferred to the Norfolk Virginia Recruiting Company, United States Army Recruiting Battalion, Richmond, Virginia and assigned as the Company’s First Sergeant. Id. ¶ 7. The plaintiff’s first NCOER (NCOER 9303-9307) as senior sergeant at this company was issued as a change-of-rater evaluation because the plaintiff’s supervisor departed. Id. ¶ 12. He received “excellence” marks in all five categories of the NCOER, and the senior rater awarded the plaintiff the highest numerical score possible, “1”, for overall performance and promotion potential. Id. ¶ 12.
Thereafter, Captain Latham became the plaintiff’s supervisor and thus his rater under the NCOERS. Id. ¶ 15. According to the plaintiff, once Captain Latham assumed this position, he began to shift credit for the Norfolk Virginia Battalion’s successes from the plaintiff to himself. Id. ¶ 15. The plaintiff alleges that after Latham’s effort to relieve him of his duties was unsuccessful, a “back-room deal was made” in his absence whereby the plaintiff would receive credit for the Company’s success by the issuance of a Meritorious Service Medal, while at the same time he would be relieved of his duties and receive an evaluation which he deemed would be a “career-ender NCOER.” Id. ¶¶ 16-17. In this evaluation, which covered the period of August 1993 through January 1994, the plaintiff contends that his prior “excellence” marks in Part VI of the NCOER were “deflated.” Id. ¶ 16. To support this accusation, the plaintiff points to the fact that in the prior NCOER, he received five “excellence” ratings, while in the NCOER for this period he received only two “excellence” ratings and three “success” ratings. Id ;
The January 1994 reassignment resulted in the plaintiff being assigned as the First Sergeant of the Cherry Hill Recruiting Company, United States Army Recruiting Battalion, Philadelphia, Pennsylvania. Id. ¶ 26. According to the plaintiff, after eleven months at this new Battalion, the “standings” of the Battalion improved significantly. Id. The plaintiff contends that these improvements made the Captain in charge of the Battalion look bad and thus to “steal the credit,” the plaintiff opines that the Captain recommend that the plaintiff be relieved of his duties. Id. ¶¶ 27-28. In November 1994, the plaintiff was allegedly relieved and received his NCOER. Again, the plaintiff alleges that this evaluation was, despite being labeled a change-of-
In 1996, the plaintiff for the first time became eligible for promotion to the rank of Sergeant Major, but was not selected for the position. Id. ¶ 32. In January 1997, the plaintiff filed an appeal with the ESRB seeking to have the two allegedly adverse NCOERS’s removed from his personnel filed or corrected to reflect his true performance. Id. ¶ 33. Following a review of the plaintiff’s appeal, the ESRB amended the later of the two NCOER to correct the ending date of the evaluation period from December 1994 to November 1994. Id. The ESRB denied the plaintiff’s remaining claims for relief. Id. ¶ 35. On October 7, 1997, the plaintiff appealed the ESRB’s decision to the ABCMR, which denied his appeal in March 1998. Id. ¶ 36. In July 1998, the plaintiff was mandatorily retired. Id. ¶ 37.
The plaintiff now challenges the ABCMR’s decision denying his request to have the contested NCOERs removed from his personnel file or otherwise corrected to reflect his true work performance. The defendant seeks to have this complaint dismissed for lack of subject matter jurisdiction pursuant to
II. Standards of Review
Under
This Court will grant a motion for summary judgment under
III. Legal Analysis
(A) The Defendant’s Motion to Dismiss or, in the Alternative, Motion to Transfer
The defendant first contends that the plaintiff is seeking non-tort monetary damages in excess of $10,000, and thus this case should be dismissed for lack of jurisdiction or otherwise transferred to the United States Court of Federal Claims. Def.’s Mem. at 3. The plaintiff contends, however, that this Court has jurisdiction under the Administrative Procedure Act (“APA”),
The Court must begin its analysis by determining whether this action is one properly brought under the Tucker Act, because if it is, an assessment of the Court’s jurisdiction pursuant to the APA is unnecessary as subject matter jurisdiction under the APA only lies when “there is no other adequate remedy in a court.”
to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort
This test has been applied in a straight-forward manner. In Kidwell, the plaintiff sought judicial review of a decision by the ABCMR, which refused to alter the plaintiff’s personnel file
Here, the defendant posits that the plaintiff’s complaint seeks reconsideration of a promotion backdated to 1996 and a higher retirement pension. Def.’s Mem. at 4-5. Thus, the
After carefully reviewing the complaint and the arguments advanced by the parties, it is clear that the defendant’s position is without merit. In this case, the plaintiff seeks three things: (1) a declaration that the Army’s denial of his claims violated the APA; (2) an order vacating in their entirety the NCOERs for the periods of 9308-9401 and 9402-9411 and a remand of his case to the Army for appropriate relief; and (3) reasonable attorney’s fees and costs. Compl. at 11. Although the plaintiff discusses his non-selection for a promotion in the complaint, it is clear that his complaint does not ask this court to review his non-selection, rather, the plaintiff seeks only to challenge the denial of his request to remove the two contested NCOERs from his personnel file. Id. ¶ 38 (“Plaintiff-Calloway now seeks judicial review of the BCMR decision limited to the
Moreover, the defendant does not dispute the plaintiff’s position that any monetary damages would not flow from the case before this Court, but rather from later proceedings before various Army boards of review. See Def.’s Reply at 3. The argument that some subsequent monetary benefit by a plaintiff would divest this Court of jurisdiction has been rejected by the District of Columbia Circuit. In Vietnam Veterans of Am., the Circuit Court was presented with a challenge to its jurisdiction. Vietnam Veterans of Am., 843 F.2d at 533. There, former servicemen brought an action seeking to upgrade their less than honorable drug-related discharges. Id. at 530. The district court entered judgment in favor of the servicemen, and the government appealed. On appeal, the government argued that jurisdiction over the appeal was in the Federal Circuit because the plaintiff’s claim was premised on the Little Tucker Act. Id. at 534. Specifically, the government contended that a “direct, automatic, and unavoidable consequence of [the upgrades would] be payment for the leave accrued at the time of [the former
Here, nothing in the plaintiff’s complaint can be construed as an attempt to obtain monetary relief, and accordingly, the Tucker Act does not prevent this Court from retaining jurisdiction over the plaintiff’s claims. See Steffan, 733 F. Supp. at 121 (“[T]he Tucker Act does not apply to this action because plaintiff is not seeking money damages.”). Moreover, any relief the plaintiff may be entitled to is certainly not automatic and would not flow directly from the outcome of this litigation. Pl.’s Mem. at 3 (discussing process the plaintiff must pursue to be awarded a promotion and thus be entitled to back pay and greater retirement benefits). Thus, the Court’s jurisdiction in this case is even clearer than was the situation presented to the Circuit Court in Vietnam Veterans of Am., because in that case monetary relief would flow directly from the district court’s actions. Vietnam Veterans of Am., 843 F.2d at 534; see also Steffan, 733 F. Supp. at 120-21 (“An examination of the case law reveals that the government’s contention that an implicit claim for back pay in excess of $10,000 confers exclusive jurisdiction on the Claims
Based on the facts of the case as presented to the Court, it is clear that jurisdiction over the plaintiff’s claims are not predicated on the Tucker Act. Rather, the APA provides the basis for this Court having subject matter jurisdiction. Accordingly, the defendant’s motion to dismiss or in the alternative to transfer is denied.
(B) The Parties’ Motions for Summary Judgment
Turning now to the parties’ cross-motions for summary judgment, it is clear that the plaintiff’s motion should be granted in part, and the defendant’s motion must be denied. To succeed, the plaintiff must establish that the rejection of his request to remove the two contested NCOERs from his personnel file was arbitrary and capricious and an abuse of discretion.
The Secretary of the Army, acting through the ABCMR, “may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.”
The parties frame the issue before this Court in two very different manners. The defendant alleges that the ABCMR reviewed the factual basis for the contested NCOERs and carefully considered the claims that the plaintiff was asserting and thus there was nothing
Based upon the parties’ summary judgment papers, it is apparent that the plaintiff is not challenging the ABCMR’s decision as it relates to assessing the reasonableness of the NCOERs as change-of-rater reports, but rather the ABCMRs failure to determine whether, based upon the evidence presented, these NCOERs were in fact relief-for-cause reports. And if so, whether they were prepared and issued in violation of the applicable Army Regulations. In fact, the plaintiff’s entire cross-motion for summary judgment analyzes his claims as if the NCOERs were change-of-rater reports. Pl.’s Mem. at 4-14; Def.’s Reply at 11 (“plaintiff’s entire complaint is premised on his claim that the Army “‘de facto’ relived him for cause but did not adhere to the procedural requirements of Army Reg. 623-205 ¶ 2-10, applicable to relief for cause NCOERs”).
The defendant contends that this issue was not raised at the administrative level and is
The District of Columbia Circuit has concluded that the failure of a BCMR to respond to arguments raised by a plaintiff, which do not appear frivolous on their face and could affect the Board’s ultimate disposition, is arbitrary. See Frizelle v. Slater, 111 F.3d 172, 177(D.C. Cir. 1997); see also Mudd v. Caldera, 26 F. Supp. 2d 113, 123 (D.D.C. 1998). Accordingly, because
it must expressly indicate that it has done so. Otherwise neither [the plaintiff] nor this court would be able to discern whether the [ABMCR] considered and was unpersuaded by those factors or whether the [ABMCR] simply excluded them from its decision making process. Moreover, if the [ABMCR] excludes those factors from consideration it must explain its rationale for doing so.9
Puerto Rico Higher Educ., 10 F.3d at 853. “In other words, although the [ABMCR] need not consider each of [the plaintiff’s] arguments on its merits, if it decides not to address these arguments, it must explain why.” Frizelle v. Pena, Civ. A. No. 93-0905, 1993 WL 548825, at *4 (D.D.C. Dec. 30, 1993).
IV. Conclusion
For the foregoing reasons, this Court denies both the defendant’s motion to transfer and the defendant’s motion to dismiss. Moreover, because this Court concludes that the ABCMR acted in an arbitrary manner by not addressing all of the plaintiffs’s arguments, this Court grants the plaintiff’s motion for summary judgment to the extent that it seeks remand to the Secretary of the Army and denies the defendant’s motion for summary judgment.
REGGIE B. WALTON
United States District Judge