Dennis A. Dickson v. Secretary of Defense

by they recognized, applying contract the issues which will Court limit Connecticut law arbitrate, may they by actually promotes specify primary so too con- here the FAA’s goal by enforcing parties’ tract the under which that arbitra- rules contract according tion will be conducted. arbitrate to its terms. (citation Id. at 109 S.Ct. at 1255-56

omitted). III. Conclusion preempt FAA has been seen to state indicated, For the reasons heretofore pri it conflicted with “the FAA’s law where judgment of the District Court is affirmed. mary purpose ensuring private agree So ordered. according ments to arbitrate are enforced Id.; Thomas, Perry their terms.” see also v. 483, 490-91, 107 2520, 2525-26,

482 U.S. S.Ct. (1987) (FAA preempted

96 L.Ed.2d 426 state agreements wage thát

law made arbitrate unenforceable.);

collection claims Southland

Corp. Keating, 465 U.S. (1984) (FAA

852, 861, 79 preempt L.Ed.2d agreements

ed law that state made to arbi unenforceable.). DICKSON, al., Appellants, A. trate franchise claims Dennis et How Volt, ever, here, parties where “the agreed to abide state rules of arbi DEFENSE, SECRETARY OF tration, enforcing according those rules al., Appellees. et agreement fully of the the terms consistent FAA, goals with the even if the result Nos. 94-5227. stayed is that arbitration is where Act Appeals, United States Court of permit go would otherwise it to forward.” District of Columbia Circuit. at at S.Ct. see also Waltman, Fahnestock & Co. v. Argued Sept. (2d Cir.) (FAA preempt does not New Decided Oct. prohibiting punitive York common law rule award.), denied, damages in arbitration S.Ct.

(1991), and cert.

Appellants argue that Connecticut’s arbi- yield actually

tration law must because it However, with FAA

conflicts at oral that,

argument appellants conceded under

Volt, Merger Agreement explicitly if the had application

called for the of Connecticut’s 30-

day period, provision limitation such a would

trump period. the FAA’s three-month We

can no discern material difference between hypothetical provision

such a and the actual parties’ Merger Agreement calling

one application

for the of Connecticut law. Once

it is determined that “Connecticut law” im-

poses 30-day period, limitation there can parties agreed

be no doubt that the to be point

bound it. The main is that Connect- surely

icut law does not conflict with the “primary purpose.”

FAA’s As the District Smith, DC, Washington, argued H.

Donald cause, appellants. him on the for With Flagg, briefs were Ronald S. Gershon M. Ratner, Joseph David F. Addlestone. R. and appel- appearance, entered an for Guerra lants. Lawrence, Craig

R. Assistant United cause, Attorney, argued appel- States for him on the brief was Eric H. lees. With Holder, Jr., Attorney. United States Daniel Horn, Bates, F. D. and Michael T. Van John Ambrosino, Assistant United States Attor- neys, appearances, appellees. entered for WALD, SILBERMAN, Before: and ROGERS, Judges. Circuit Opinion by for the Court filed Circuit Judge WALD.

Opinion concurring dissenting part in and part Judge filed Circuit SILBERMAN. WALD, Judge: Circuit Dickson, Haire, Appellants Bobby Dennis Hodges and Edward seek reversal petitions district court’s dismissal of their Army review decisions Board for Cor- (“Board”), Military rection of Records which period had refused to waive the limitations applications upgrades for of their dis- charge Army classifications. Each of these applied upgrade long veterans for an after three-year period, limitations and in each ease, the Board found that a did not statutory being meet the standard of “in the justice.” grant- interest of The district court government’s ed the motion to dismiss case, grounds each on the that the Board’s not decisions were reviewable. We hold that the Board’s waiver determinations are re- viewable, further, that in each of these cases, the determination that a waiver was justice” “in the interest of was capricious because the Board failed to provide any adequate explanation con- for its life, judg- inability adapt therefore reverse the son for elusions. We leading discharge, district to his of dismissal and instruct under “oth- ments the Board’s decisions and er than honorable conditions.” to vacate the Board for further remand the cases to Nearly later, Dickson consideration. applied to the Board an upgrade of his discharge classification. He claimed that his I. BACKGROUND unjust discharge had been because he was signing discharge not counseled before Statutory A. Framework addition, papers. he claimed that Military for Correction of unduly harsh because his of- composed Records is of civilians who evalu- mitigated by personal family fenses were allegations of er- ate former servicemembers’ problems, Army and that under current stan- injustices military or in their records. rors dards he would have received a more favor- Board, as well as similar boards for the This discharge. able services, other branches of the armed derives application. The Board denied Dickson’s 1552(a)(1),1 authority § its from 10 U.S.C. decision, In its the Board noted Dickson’s part provides: which in relevant contention that he would have received a Secretary military department The of a discharge today’s more favorable under stan- may any military correct record of the dards, and recited some of the facts Dickson Secretary’s department when the Secre- alleged had about his situation. The Board tary necessary it considers to correct alleged injustice then stated that the or error injustice.... [S]uch error or remove an “was, diligence or with reasonable should by Secretary corrections shall be made been, discovered” on the date of his acting through boards of civilians discharge. The Board’s conclusion read: part department. executive of that subject application The submitted period The limitations is set forth in 10 required. applicant within the time The 1552(b): U.S.C. submitted, has not nor do the con- records may No correction be made under subsec- tain, justification sufficient establish (a)(1) or tion unless the claimant his heir justice in would be the interest of legal representative request or files a for excuse the failure to file within the time years after the correction within three he prescribed by law. However, injustice. discovers the error or (a)(1) established under subsection board Bobby Haire may excuse a failure to file within three Army enlisted in the in re- Haire discovery if it in after finds it to be nearly discharge an honorable after ceived justice. the interest of service, 2]é years of and later reenlisted. enlistment, During his second while stationed B. The Facts Germany, requested in to return he leave wife, involving 1. Dennis Dickson home to deal with troubles his request granted. Around but his was not voluntarily Army Dickson enlisted time, began heavily. Haire he to drink approximately and after nine months of by summary was convicted court-martial of granted service he was a two-week leave. leave, being drunk and absent without days returning Dickson was five late from unlawfully carrying a con- later convicted for leave, and was convicted court-martial for check,'and weapon, missing a cealed bed from this absence. After his release court-martials, fighting. In after the stockade, heavily. began Dickson to drink discharge Haire received an “undesirable” He was absent without leave on two more Army. from the occasions, again for which he was convicted events, years after his In more than 30 court-martial. After these applied for an Army began proceedings discharge discharge, Diek- Haire the Board implementing regulations found at 32 C.F.R. 581.3. 1. The 1552 can be Hodges that he “did not application, claimed classification. his upgrade of possible until only discharge upgrade was know a argument was that he had main Haire’s addition, he evi- recently.” submitted Army changed had recently that the learned abuse, personal problems and alcohol of his dealing alcohol dence procedures for with its standards, he would abuse. current and that under treatment, counseling and

have received Hodges’ application. In Board denied The likely have received an undesirable would not Hodges’ noted conten- opinion, the Board its discharge. “un- discharge classification was tion that his in which it issued a decision The Board harsh,” duly did not address the merits but today’s that “in Haire’s noted contention Board found that the argument. The of this or a either receive treatment he would “was, injustice or with rea- alleged error or not ad- discharge.” The Board did better been, discover- diligence should have sonable relevancy of this conten- the merits dress discharge. The Board ed” on the date of his “alleged tion, instead determined but stated, virtually language identical further was, injustice or with reasonable error or Haire and Dickson: to that used for discovered” on diligence should have been subject application was not submitted The concluded, discharge, and as with the date of required. applicant the time within Dickson: presented, nor do the records con- has not subject application not submitted The was tain, justification that sufficient to establish applicant required. The within the time justice in the interest of it would be presented and the records do not has the failure to file within the time excuse justification to conclude sufficient contain by prescribed law. justice in of that it would be the interest time the failure to file within the excuse II. Discussion by law. prescribed Reviewability A. Board Waiver Deci- of Hodges Edward 3. sions Army Hodges in the in and enlisted govern granted court The district Upon returning to in Korea. served petitions ment’s motions to dismiss the States, 30-day Hodges took a leave to United review these Board determinations. fiancee, during they and his visit see his Defense, 93-952, Secretary No. Dickson v. of engagement. Hodges report- off their broke (D.D.C. 1994) J.) (Richey, Mem.Op. May Kansas, duty stayed in drunk for ed to but (Dickson Haire) (“Mem.Op.”); Hodges v. months. He was most of the next several Defense, Mem.Op. Secretary No. disciplined for minor offenses and later failed 1994) J.).2 (D.D.C. (Harris, Specifi June report duty. pleaded guilty in a He cally, the district court found that Board general court-martial for absence without judicially waiver determinations are not re subsequently discharged and was un- leave Relying part on an dis viewable. earlier der “other than honorable conditions” decision,3 contrary rejecting trict court 1957. decision,4 the court found that district 1552(b) § years discharge, language of indicates that this In 22 after his on Hodges inquired changing his dis- statute confers exclusive discretion first about charge finally completed Board to make waiver determinations. See classification. He question Mem.Op. In at 10-11. The of the re- application his to the Board 1985. his reviewable), grounds, Judge rev'd other 41 F.3d 738 reached the same conclusions as Harris Richey, citing (D.C.Cir.1994). Judge approval with his Memoran- Opinion. to the dum Our further references Judge opinion Richey’s district court’s will be to Card, (D.D.C.1992) F.Supp. 4. Allen v. 158 opinion. (waiver determinations reviewable under an standard), rev’d on other abuse of discretion Defense, Secretary F.Supp. Ortiz Pena, grounds sub nom. Detweiler v. 38 F.3d 591 (D.D.C.1993) (waiver completely determinations (D.C.Cir.1994). discretion, agency committed' to and thus not agency action is committed to viewability of Board waiver determinations discretion 701(a)(1), Here, § law.” Id. no appeal. novo review on statute to de review, precludes judicial only ques- so the argues the district government that The § tion is whether 1552 commits the waiver finding that waiver court was correct de- exclusively decision discretion. they terminations are not reviewable because committed to discre- involve matters The mere fact that a statute is si Procedure Act tion under the Administrative lent on the controlling. issue review is not 701(a)(2). (“APA”). See 5 U.S.C. contrary, “begin To the strong with the granting authority to the statute presumption Congress intends Board, government argues, contains no review of administrative action.” Bowen v. judicially manageable against standards Michigan Family Physicians, Acad. may analyze which a court the Board’s exer- 2133, 2135-36, discretion, cise of and thus does not envision (1986). Thus, “judicial L.Ed.2d 623 review of 1552(b). In 10 U.S.C. review. See aggrieved person a final action alternative, government argues that none persuasive will not be cut off unless there is capri- of these decisions purpose reason to believe that such was the petitioners waited from 20 to cious because Gardner, Congress.” Abbott Labs. v. relief, provide and did not to seek 1507, 1510-11, adequate delay. their reasons for (1967) cases). (collecting previously court has not decided This finding that waiver determinations waiver determinations of the Board whether reviewable, placed are not the district court Kendall v. Bd. are reviewable. See heavy weight says on the fact that Records, Military Correction of file,” “may that the board excuse a failure to (D.C.Cir.1993) (“Without considering and not “shall” excuse a failure to file. jurisdic question of the District Court’s Mem.Op. (emphasis supplied). See at 8 We it tion to review the ABCMR’s decisions that reasoning unpersuasive. find this When a justice....”); in was not the interest of Bax permissive “may” statute uses a term such as (D.C.Cir. 181, Claytor, v. F.2d 186 ter 652 mandatory rather than a term such as 1981) (waiver determination is “for the Board “shall,” language suggests this choice of that (emphasis to make in instance” the first Congress intends to confer some discretion supplied)).5 agency, that on the courts should accord starting point analysis ingly agency’s The for our is the show to the determi deference APA, However, provides agency language nation. which that final ac- such does not “subject judicial exclusively tions are review.” 5 mean the matter is committed § only statutory excep- agency Mulloy 704.6 The discretion. v. U.S.C. United States, 1766, 1770, particular if tions to this rule are a statute 398 U.S. 90 S.Ct. (1970) (statute “preelude[s] judicial “agency providing if review” or 26 L.Ed.2d 362 that majority although untimely application, 5. The of our sister circuits that have er’s it did not find presented challenges been with to waiver deter explicitly that waiver are commit- determinations them, although discretion, minations reviewed none any ted to nor did it address in squarely reviewability has addressed the issue way applicability of the Administrative Proce- Stone, e.g., faced here. Guerrero v. 970 F.2d dure Act. 626, Cir.1992) (Board’s (9th 635 decision was ''arbitrary, capricious unsupported by sub case, undisputed 6 In this it is that the Board is evidence"); Marsh, stantial Evans v. 835 F.2d APA, “agency” purposes which 609, (5th Cir.1988) (finding 613 no abuse of “agency” authority defines to include "each States, discretion); v. Boruski United 701(b)(1). § 5 U.S.C. The Government.” (2d Cir.) ("we do not find that the only exceptions pertaining military to the are for discretion"), app. [Board] abused its dismissed authority "military exercised in the field in time denied, 20, 42 and cert. 419 U.S. occupied territory,” of war or in id. (1974), L.Ed.2d 34 421 U.S. 701(b)(1)(G), § and "courts martial Eighth S.Ct Circuit, commissions,” 701(b)(1)(F), Marsh, § however, id. neither of Ballenger in v. 708 F.2d Stone, (8th Cir.1983), applies which here. Accord Guerrero v. stated that the petition- obligation” 970 F.2d at 628. Board "had no to consider only if it to be to file “it finds cuse a failure “may reopen” draft boards Service Selective § justice.” Id. to elect permit board in the interest does not classifications applicant disagree. where This reopen supplied). classification We (emphasis not to for new clas- presented prima case rejected linguistic has recently a similar facie Collins, sification); 397 U.S. Barlow statutory con in a different argument, albeit 836-38, 25 L.Ed.2d text, County Au in Health Care Marshall (statute Secretary Agri- (1970) authorizing (D.C.Cir. Shalala, thority v. may regulations “as he promulgate culture to 1993). case, gov noted that the In that we judicial preclude re- does not proper” deem weight much on the placing too ernment view); v. Har- Fund Environmental Defense governing medicare reim fact that a statute (in- (D.C.Cir.1970) din, 1093, 1098 Secretary to make allowed the bursement “ “cannot be preclude review tent Secretary adjustments deems such ‘as that a statute is mere fact ” found (quoting 42 U.S.C. appropriate,’ id. at 1228 mandatory rather than permissive drafted 1395ww(d)(5)(C)(iii)), that § and determined terms”).7 delega stronger this language seemingly — Wallace, Chappell than one involved tion to (1983), the Su- S.Ct. solely the matter not commit here —did that when a Board reviews preme Court held again find instructive discretion. We ap- of a former servicemember’s the merits holding Chappell Supreme Court’s 1552(a)(1), § the decision plication under 1552(a)(1) § under are reviewable decisions judicial review. Id. at language pro despite the fact that the there (“Board subject to decisions are at 2367 Secretary may mili correct a vides that the they if can be set aside judicial review and Secretary considers it tary record when “the arbitrary, capricious, or not based on or remove an necessary to correct an error evidence.”). It is instructive substantial 1552(a)(1) (emphasis injustice.” 10 U.S.C. to correct Chappell held that Board decisions before, parallel if supplied). this Just military record are reviewa- not correct a commit Board language does not suffice to 1552(a)(1)provides despite the fact that ble entirely to the determinations on the merits any military Secretary “may correct discretion, why fail to see Board’s 1552(a)(1) (emphasis 10 U.S.C. record.” should be sufficient to do so the case why the use of supplied). We see no reason waiver determinations.8 1552(b) “may” preclude § review of in should pre- when it does not determinations waiver Nonetheless, suggests government the on the merits under clude review of decisions reviewability Chappell and other cases are of 1552(a)(1). § light precedential value in of the Su- limited in preme later decisions v. Court’s Webster goes argue that we government The on to 592, 2047, Doe, 108 100 an intent to commit waiver de- should infer (1988), Chaney, and Heckler v. L.Ed.2d 632 agency light in of terminations to discretion may 470 84 language that a Board ex- the further extreme, Indeed, language providing utory substantial dis construction taken to the this INS, expressly e.g., that even if the Board F.3d would mean cretion. Varela-Blanco particular "the (8th Cir.1994) (decision a case that it was in found in waiver, justice” grant to it could still interest of deportation Immigration Appeals not to waive States, v. United decline to do so. Mullen 1182(c) § proceedings Cf. under 8 U.S.C. is discre (1989) (reading “may” in Cl.Ct. reviewable, judicially tionary, de but nonetheless "shall”). § to mean spite the waiver the fact that the statute allows to be made "in the discretion of the decision agency is We do not have here a case where an Johnson, General”); Attorney see also Kent given and standardless discretion. unfettered Cf. Cir.1987) (failure (6th inmate States, Sargisson v. United timely objections magistrate's report to file (Fed.Cir.1990) (statute permitting release of mili- justice, due would be waived in the interest duty any tary "at officers from active reserve proffered delay both to the inmate’s reasons for procedural placed or limita- time” no substantive import” of the issue as well as the "considerable Instead, discretion). Secretaiy’s the sit- tions on presented). akin to those cases in which uation here is more despite stat- courts have reviewed waiver denials (1985) (finding authorizing that the “committed to ent than the statute the Correc- apply Boards, clause could in both discretion” nation tion and that the normal presump- security enforcement situa al tion of review should not be abandoned. tions). have, however, already found We similarly We find that Webster does not Chappell’s holding that Webster did alter foreclose review of waiver determinations un- that Board decisions on the merits under 1552(b). Kreis, § der Just as in govern- the 1552(a) are reviewable. See Kreis v. Sec why, ment here offers no reason in legiti- the Force, retary Air the security, mate interests of national the Board (D.C.Cir.1989). 1513-14 should not disclose the reasons for its deci- Webster, at statute issue —the Na- operation sions. While the efficient Security tional Act—authorized Director is, course, important Armed Services (“CIA”) Intelligence Agency of the Central “ security, government national does not employee terminate an [he] ‘whenever shall argue adjusting here that sta- necessary deem such termination or advisa- tus of a member of the armed ser- former ble the interests of the United States.’” vices is a decision so imbued with national (quoting at 108 S.Ct. at 2052 security require concerns bypassing as to 403(e)). Supreme U.S.C. Court ob- regular procedures. Surely review Congress (through served the National implicate determinations can no more serious Act) Security gave responsibility the CIA security national concerns than the substan- “protecting intelligence sources and methods tive involving decisions disclosure,” record correc- Agen- from and noted that “the tions themselves.9 cy’s efficacy, security, and the Nation’s de- pend large reliability measure on the Moreover, Chaney, we find Heckler v. Agency’s employees.” trustworthiness of the principally relied, which the district court see at at Id. 2052-53. The Web- Mem.Op. inapposite at in this ease. Heck part upon ster decision thus “turned in ler Drug held that the Food and Administra statutory oper- context in which the mandate tion’s decision not to take ac enforcement Kreis, found, ated.” 866 F.2d at 1513. We prevent drugs tions to the use of in lethal however, parallels between the Na- injections was not review. Security tional Act and 1552 were not Because review the Board is not an en strong enough justify extending Webster’s decision, persuasive forcement Heckler is not limitation on review to Board decisions. For Moreover, rejecting presump here. thing, language authorizing one the Sec- tion that review is available for enforcement retary “injustice” to correct an “error” or decisions, Heckler noted that these decisions “considerably narrower” than Di- the CIA complicated balancing “often involve a of fac rector’s broad directive to determine whether peculiarly tors which agen within [the employee’s “necessary termination is 831, 105 cy’s] expertise.” 470 U.S. at S.Ct. at advisable the interests of the United Here, (emphasis supplied). 1655 we have Moreover, States.” Id. at 1514. we noted why been shown no sufficient reason the Boards, that in the case of Correction the determination, basis, case-by-case aon of Secretary of Defense “does not claim that justice” “in what is the interest of lies within security national concerns would constrain expertise the exclusive of the Board. Courts explaining him in his refusal to correct an have, contexts, “in other found the interest injustice.” contrast, error or Id. In the CIA justice” of to be a reviewable standard. might “legitimately Director find a termi- e.g., Navy, Department Sims v. the 711 nation warranted for reasons that cannot of (Fed.Cir.1983) 1578, (reviewing safely anyone F.2d 1581-83 be shared with the outside Thus, Agency.” upholding attorney’s Id. we found that denial of fees the Na- Security Board, substantially Systems tional Act was differ- Merit Protection where by Congress place they military 9. The basic decision to dis- are not the of decisions that are sort charge correction decisions outside the security inappro- vital to national and considered civilians, chain of command and in the hands of priate judicial review. 1552(a)(1), suggests § see 10 U.S.C. further that 1404 Citizen, Inc. v. Public explain if its result.” fees “may” payment such direct Board FAA, Fed- (D.C.Cir.1993); 186, 197 justice”).10 988 interest of “in the

warranted Rose, 1081, Election Comm’n eral sum, language the In neither (D.C.Cir.1986). arbitrary and ca- 1088 1552(b) statutory in which the scheme § nor “mandates] the APA pricious standard of to “persuasive reason provide it is embedded steps it needs agency take whatever that an that waiver Congress intended that believe” explanation that will enable provide an solely agen be committed determinations agency’s at rationale to evaluate Labs., 387 Abbott at See U.S. cy discretion.11 Pension of decision.” the time Benefit 140, hold that at 1510. We therefore 87 S.Ct. 633, Corp., 496 U.S. Guaranty Corp. v. LTV under determinations 2680, 110 S.Ct. review. are (1990). Decisions Here B. The Board’s agen that an This does not mean Having that determined analytic a model of cy’s must be decision reviewable, we now Board’s decisions challenge. reviewing A precision a to survive of whether the decisions turn to the issue “uphold of less than a decision court will “arbitrary, capricious, an abuse here were agency’s path may reason clarity if the ideal in accordance or otherwise discretion Transp., Inc. Bowman ably be discerned.” 706.12 Because with law.” U.S.C. .5 Freight System, v. Arkansas-Best Motor anything approaching provide Board failed to 42 L.Ed.2d decisions, for its we explanation a reasoned Long International (1974); see also determinations were hold that the waiver Bd., Ass’n v. National Mediation shoremen’s arbitrary capricious. (D.C.Cir.1989). However, minimally con agency’s explanation must agency ac requirement “The that the facts “a rational connection between capricious includes tain tion not be choice made.” Motor Vehicle agency adequately found and the requirement a Field, addition, Waiving generally the Discre- 11. See John we note that the situation here 10.In Governing tionary Boards distinguishable Statute Limitations readily from our decision in Fal Records, EEOC, (D.C.Cir.), Military Correction Geo. 783 F.2d 252 kowski (1994) ("Both the statute's WashX.Rev. Falkowski, history legislative legislative and the overall found that In L.Ed.2d strongly Congress Attorney did not authorizing General to scheme indicate a statute " and unreviewable dis- lawyer intend to confer unlimited into court 'to attend to the inter send a ” upon the Secre- waivers] cretion the case of [in States’ was unreviewable. ests of the United 517). tary.”). (quoting In at 253 28 U.S.C. See id. conclusion, reaching the ex this we relied on dissenting colleague As to the burden that our charge, well as the breadth of this treme by judicial predicts imposed review on will be discretionary authority “lengthy history" of the waiver, agency to articulate its standards for determining Attorney General in whether Op. this is a burden which see at employee. provide a Id. counsel for federal through either case- is free Falkowski, Heckler, addition, like involved a In general by-case definition or more rule-like being government office was situation where agencies It is a burden that other standards. against its asked to balance its limited resources successfully discharged time imme- since determination of broad interests. (or at least since the advent of the Admin- morial Act); colleague’s contrast, our dire istrative Procedure history of total defer- there is no speculation that it will decrease rather than in- in the situations before us. ence to the Board service-persons’ chances for a break is crease Chappell, just pure speculation. (1983) (Board decisions on the mer- L.Ed.2d 586 that — Moreover, reviewable). a waiver determi- its explic- require potentially only APAdoes not that a statute involves a 12. The nation the Board judicial itly provide or articulate a for review allocation of limited resources. minimal Cf. Reno, Mem.Op. review. at 8-9. Rath- v. standard of American Medical Association Cf. er, (D.C.Cir.1995) judi- provides (Drug the APA a default standard of Enforcement capricious precisely registration Agency un- cial decision to increase fees review— — situations, one, judicial where a statute for such as this Substances Act der Controlled provide of at is- does not otherwise standard review where resource allocation was not sue). review. go Farm Mut. Auto. Ins. but should also Ass’n State the merits of his claim. Mfrs. Stone, (9th Co., 29, 43, 2856, 2866, e.g., Guerrero v. 103 S.Ct. 970 F.2d 626 US. Cir.1992).14 (1983) addition, (citing Burlington Truck Board did not Lines, States, 156, explain it how reached its conclusion Inc. v. about United (1962)). injustice 239, 245, when the should have been discov- 9 L.Ed.2d 207 83 S.Ct. Where, cases, ered.15 as in appli- these an Here, boilerplate language used cant arguing that he is entitled to an impossible makes it the Board discern upgrade changed based on conditions for the “path.” petitioners All had the Board’s three treatment of alcoholism personal or other problems alcohol-related which contributed problems, the date he “should have discover- discharges, to their and thus had some rea injustice may ed” the be the effective of date current, hope Army’s son to that the more the new standard and not the date of his favorable, dealing for with standards alcohol discharge. Claytor, Baxter v. 652 F.2d at Cf. might justify upgrade an ism their stat (on remand Board should consider Although us.13 the Board each case brief appellant whether should have “discovered” ly alleged by petitioners, recited the facts alleged injustice error or at the of time and then found that a waiver would not be in his court-martials in 1955 and 1956 or wheth- justice, the interest of it omitted the critical proper discovery er the date of was 1972 or step connecting the facts to the conclusion. — subsequent when Supreme Court deci- agency merely parrots language anWhen question appellant sions called into whether providing aof statute without an account of right had a constitutional to counsel at his results, it it how reached its has not ade court-martials). The Board’s decisions here quately explained the for basis its decision. do not reflect whether it even considered this argument, weight much less what it de- Significantly, the Board’s decisions served. exclusively do not reveal whether relied legitimacy applicants’ of the reasons here, emphasize We as we did in for delay, Kreis, it also whether considered the un conducting that in this review we are derlying merits of their attempting claims. Other identify whether “the decision deficient, courts have found that a determination “in making process was not whether justice” the interest of should not focus ex [the] decision was correct.” 866 F.2d at clusively applicant’s delay, on the reasons for 1511.16 But we cannot determine whether regulations govern closely Army). practice, appli- 13. Under the of the Under such a (but military Discharge worthy might related cant with a Review Boards case on the merits Boards) not the Correction a service member's meet the conditions for a waiver even without a showing compelling delay. discharge upgraded of a should be if there is reason for "sub stantial doubt" he would have received the same discharge procedures policies. current under case, In each the Board concluded that "the 70.9(c)(1). generally 32 C.F.R. Blassin was, alleged injustice error or or with reasonable game Secretary Navy, 66-67 diligence should have been discovered" on the (2d Cir.1987) (discharge provide review boards Army. date of from the an alternative means correction of records, request for but review must be made government spends 16. considerable effort discharge, of date within 15 without decisions, attempting justify argu- the Board's waiver). possibility Although we do not rule ing delay by petition- that the reasons for offered here on the Board must take ac whether into conclusory vague. arguments ers were Such count new standards for the treatment of alco stage process. are of no avail at this A holism, we note that the Board has failed to reviewing “may supply a reasoned ba- any way relevancy indicate in its view of the agency's itself sis for decision that the these new standards. given.” has not Motor Vehicle Ass’n v. Mfrs. Co., 29, 43, State Farm Mut. Ins. Auto. Although parame- (1983) we do not decide here the standard, 194, 196, justice” ters of the (citing Chenery Corp., "interest note SEC v. has, (1947)). past, at least in the 91 L.Ed. 1995 Thus, applicant’s request government’s arguments considered the merits of an had even if the delay making question well as the reasons merit—a we do not reach—-we could H.R.Rep. 1825, uphold it did not determinations. See No. 89th not the Board's decisions where (1966) (letter Cong., Secretary arguments 2d Sess. 3-4 address those in its decision. from 1406 apply to to the ABCMR U.S.C. making process was deficient the decision military his records for correction of to understand what are allowed until we 4, 1978, or to demonstrate that November process was.17 inter- excused the the failure should be however, sug- dissenting colleague, Our justice. appellant As offered no est of Army in Kendall v. gests prior our decision explain his evidence to the ABCMR Records, Military Correction of say delay, that the ABCMR was we cannot (D.C.Cir.1993), controlling is F.2d 362 996 capricious. explain its precedent that the Board need omitted). (internal at 366-67 citations Id. Op. at 1408. This read- denials. See waiver the it declined to decide whether Because weight great- far Kendall with a ing burdens all, was reviewable at Board’s waiver decision than it can bear. er con- appears that Kendall court never the dishonorably discharged requirement of the Administra-

Mr. Kendall sidered the agency explain its 1975, for assault- Procedure Act that an following a court-martial tive Kendall considered the issue of results. Had ing a soldier. From district fellow give explanation the Board must what kind of his court-martial sought he review both of cases, panel surely have in waiver would Board for and of the refusal of address, many distinguish, the had to Military Records to consider Correction of Supreme and D.C.Circuit cases Court cases claims, twelve correction filed his record explanations from admin- requiring reasoned appeal, discharge. his On we after See, e.g., agencies.18 Pension Bene- istrative the district court’s determination affirmed Corp., Guaranty Corp. v. 496 U.S. LTV fit appeal from the court-martial that Kendall’s 654, 2668, 2680, 633, 110 110 L.Ed.2d S.Ct. six-year by the statute of limita- was barred (1990); Motor Vehicle Ass’n 579 Mfrs. 2401(a). Without decid- tions of 28 U.S.C. Co., 29, Farm Mut. Auto. Ins. 463 U.S. State ing whether the Board’s refusal waive three-year limitation of 10 U.S.C. 1552was Lines, (1983); Burlington Truck Inc. all, at we found that reviewable States, 83 United S.Ct. claim lacks mer- the substance of Kendall’s (1962); 239, 245-46, 207 Public 9 L.Ed.2d it. If the ABCMR’s decision is reviewable Citizen, FAA, Inc. v. 988 F.2d 197 all, applicable at standard of review (D.C.Cir.1993); Longshore- International [the] [the] “whether action Bd., 870 men’s Ass’n v. National Mediation law, or is instead conforms to (D.C.Cir.1989); Federal Elec- F.2d contrary arbitrary, capricious or to the Rose, 1081, 1088 tion Comm’n v. governing that regulations statutes and (D.C.Cir.1986). The Kendall court’s brief appellant agency.” Neither nor amicus discussion, however, mentions none these presented curiae have sufficient evidence cases, exclusively appears to focus on the that the ABCMR was arbi- to demonstrate evidentiary sufficiency record before of the trary capricious holding that Kendall conclusion. the Board to sustain its present (“the had failed to sufficient evidence F.2d at 367 substance of Kendall’s merit”). justice show it was the interest Consequently, lacks we can- claim that, timely ap- holding excuse his failure file his how Kendall’s “[a]s not see peal. required by appellant ... offered no evidence to the ABCMR Kendall was any dissenting colleague granting cites cases discretion or whim in waivers more 17. Our several give great that courts deference to any aspect regulatory for the maxim its func than in other determinations, Op. see at FCC, tion." WAITRadio v. agree would be true for and we that the same (D.C.Cir.1969)i conduct even a limited re To re- these Board determinations. But deferential view, privy made to the Board’s must be at view is not the same as no review all. Review reasoning. helps of waivers ensure that a second tier of absolving some but not others from “secret law” noted, very prem previously 18. As we have “the rigors impugn of the statute does not appellate reasoning mat ise of review is principal equality law which does receive North, States v. ters." United Judge the benefit of review. As Leven- (D.C.Cir.1990), aptly more than two decades thal so observed ago, may L.Ed.2d “The not act out of unbridled delay, say contrary cannot that the tMs back to the Board is explain Ms we the law arbitrary capricious,” or can was ABCMR of tMs circmt. an panels all future as to the need for

bind string Supreme decisions, A of Court adequate explanation of its rationale. wMch have created and nourished the artifi- Now that we have decided waiver decisions cial reviewable, presumption Congress judi- that anomalous indeed intends would be interpretation bound an action, to find ourselves gives any cial review of peti- decision, articulated, Kendall never of the leg up. e.g., tioner an enormous Bowen Board, that the unlike all other admimstra- Michigan Academy Family Physicians, v. of have to agencies, tive does not meet 667, 670, 2133, 2135, 476 U.S. 106 S.Ct. ordinary requirements of the APA as to ex (1986); Wallace, Chappell v. reasoning. v. planation its Gersman Cf. 296, 2362, 103 S.Ct. 76 L.Ed.2d 586 Ass’n, 886, Group Health (1983); Bachowski, Dunlop v. 421 U.S. (D.C.Cir.1992) (“Binding circuit law comes 1851, 1857-58, 95 S.Ct. 44 L.Ed.2d 377 holdings prior panel, only from the of a (1975); Park, Citizens to Preserve Overton — dicta.”), U.S.-, from its 402, 410, Volpe, Inc. v. 401 U.S. 91 S.Ct. (1994). 128 L.Ed.2d 363 S.Ct. We 820-821, (1971); 28 L.Ed.2d 136 Barlow v. interpretation do not believe such an of Ken Collins, 159, 166-167, 397 U.S. dall is warranted or wise. (1970); 25 L.Ed.2d 192 Abbott Lab. sum, conclusory In find that the Gardner, 136, 140, v. 387 U.S. of the Board in these cases do not statements (1967). (Public 18 L.Ed.2d 681 choice requirement that “the ade meet the surely point economists would out that tMs Citizen, quately explain Public its result.” presumption is more than a little self-serv- only 988 F.2d at 197. Because the Board Force, ing.) Secretary And in v. Kreis Air conclusions, the facts and stated its but listed (D.C.Cir.1989), 866 F.2d 1508 we held that any way, not connect them in rational did substantive decisions of correction boards un- capric Board’s decisions are 1552(a) were der reviewable notwithstand- “has ... ious.19 Where failed Mg delegation taken, a similar to the Boards to explain path it has we have no explana choice but to remand for a reasoned make corrections when there was an “error EPA, Corp. v. tion.” Tex Tin injustice.” relying We did so on the Su- (D.C.Cir.1991).20 Accordingly, in each preme opimon Chappell Court’s —which cases, of these the district court is instructed closely recognizmg pomt was most —but dismissal, judgment of va to vacate its own Chappell’s logic very that much in ten- Board, cate the decision of the and remand Supreme opimon in sion with the later Court Board for further case consider Doe, Webster S.Ct. opinion. ation consistent with tMs So ordered. persuaded Congress, by I am not SILBERMAN, Judge, concurring Circmt using the term in “in the interests part dissenting part: judicial justice,” contemplated It review. suggested pecu- that that standard is one Reluctantly, majority agree I with the available, remandmg liarly expertise judiciary. review is but within the Here, status, petitioners we have found that and submitted evidence of his clearly explained the merits of their claims. personal problems and alcohol abuse. Those alleged counseled Dickson he was not before summary re- contentions warrant more than signing discharge papers, his that his offenses sponse. mitigated by personal family problems, were arid that under current standards he would have light disposition, this we do not reach discharge. received a more favorable Haire sim- protection petitioners’ equal the issue whether ilarly contended under current standards he rights Secretary's were violated actions. counseling would have received and treatment TVA, 288, 347, Ashwander discharge. than And rather Hodges an unfavorable (1936) (Brandeis, J., 80 L.Ed. 688 only recently claimed he was made possibility upgrade concurring). aware of the of an of his case, standard, particular in a we will its rules justice” absent waives But, the “interest very par- agency to a exact- typically from a statute or not hold the principles drawn some law, recognizing determinable that body explanation, is without ing ticular standard of bottom, a At is may practically impossi- content. substantive if we make it we do often, perhaps typically, used phrase grant any agency to waivers. ble for the they to in circumstances when wish judges essentially is that the Appellant’s claim apply than the own will rather impose their changed Army’s policy alcoholism has toward why Holmes bristled That is Justice law. they many years were dis- over the since out, Hand, shouted his Mend Learned when they might be treated dif- charged and that “Well, sir, company, they departing were as today so ferently on merits than was the stopped and justice!” Holmes good-bye. Do rely respect, they In on before. this decades job. My job play my not is to “That is said Stone, opinion, a Ninth Circuit Guerrero according rules.” HARRY C. game to the (out- (9th Cir.1992), suggesting F.2d 626 Shrtver, Aneo- Stories What Gusto: me) that the Board rageously, it seems to Oliver Wendell dotes About Justice (1970). Nevertheless, having de- the merits of an ex-service must consider Holmes 1552(a) considering are that actions under claim when whether to termined member’s reviewable, persua- Appel- I not see how we can application. do a grant a waiver for late distinction, congres- sively Army a based sought draw that lants have not to show intent, that section and sional between waivers in these cases is Board’s denial of 1552(b). Still, that the Board’s to hold any previous inconsistent with actions grant reviewable does to a waiver is refusal any plau- Appellants do not advance Board. oblige to remand to the Board for not us having delayed beyond reason for sible ma- policy” “waiver explication of a three-year limitations to file their statute of jority requires. request for of records. This is corrections three-year limita- if the statute of undeniable, true even judicial review is Even when having run started to traditionally agency tions is construed afforded an de we have policy in Army changed its 1980.1 grant a waiver of a when the whether to termination case, City Angels quite which should be maximum deference. a similar rule FCC, that Broadcasting thought binding panel, Inc. v. on this we held FCC, (D.C.Cir.1984); Radio Co. v. arbitrary Thomas the Board’s action was not (D.C.Cir.1983); Ra 716 F.2d WAIT capricious, requiring any explanation without FCC, (D.C.Cir.), dio v. the Board. Kendall v. Bd. 461, 34 Records, Military Correction of agen review of Judicial (D.C.Cir.1993). majority’s The 366-367 concern, has, cy as its core the notion action Army Board opinion demanding that — subjects of agencies should treat explanation comprehensive a of its set forth authority equally. prohibition their policy precisely waiver—follows toward capricious action in the against at reasoning of the dissent in that case. Id. naturally concept APA flows out the basic 370-371. government of laws not men. that ours is a sure, typically accept an To be we will not Thus, reviewing courts show little tolerance unaccompanied an decision is unequal apply that are fashioned to for rules adequate permit us to under- explanation And, adju ly. agencies permitted are not reasoning. agency’s But a decision stand illogically as to favor dicate such a fashion waiver, grant grant or a which is We, thus, litigant force one over another. review, is in a to such deferential carefully explain deviations agencies to category. usually It different is when we regulatory adopted whether course hand, palpably inconsistent actions that faced with adjudicatory the other mode. On obliged explain. e.g., an impact can a harsh recognize that rules FCC, Country Mobilephone an in unusual situations. When Green they illegal, Appellants argue not that had filed that the Board’s decision re- three years. fusing applicants' three to file within within to excuse failure (D.C.Cir.1985).2 It seems clear to ORDER F.2d 235 Congress intended the Board’s waiv- me that PER CURIAM. authority to be exercisable without such er report: Prior 55 F.3d 667. heavy-handed supervision. This is trend in an instance of unfortunate admin- Upon consideration of the Joint Motion to building self-serving ju- on the istrative Entry Guilty Plea, Remand Case for it is law— presumption allowing dicial review —of ORDERED, Court, by the that the motion judicial wag tail review the administrative granted and this case is remanded to the (and statutory) dog. Department Now the district court. go though spelling will have to the burden of petition rehearing is dismissed as out those circumstances under which a waiv- moot. discretion, granted, cabining er will be their we, court, reviewing so that will be con- This Clerk is directed to transmit a certi- venieneed. copy fied of this order to the District Court in lieu of a formal mandate.

Ironically, surely the result will almost dis- advantage veterans since it seems-inevitable adopt

that on remand the Board will stan- only

dards for a will focus on the delay

reasons for than the merits of —rather perforce the claim. That means that some

veterans, whose claims the merits for

some reason would have moved the hearts of members, get the Board will not be able to BERKELEY, Appellant, Arnold D. just example waiver. This is a small set, pernicious effect of a mind nour- prejudices professors

ished of law COMPANY, HOME INSURANCE lawyers, implicitly many believes that as Appellee. possible society decisions our should be Nos. 94-7167. judicial oversight. subordinated to Appeals,

United States Court of District of Columbia Circuit. Argued Sept. 1995. Decided Nov. 1995. Rehearing Suggestion Rehearing In Banc Denied Dec. 1995.* America, Appellee, UNITED STATES of

Corey BOYD, Appellant. D.

No. 92-3020. Appeals,

United States Court of

District Columbia Circuit.

Nov. EDWARDS, Judge,

Before Chief WALD GINSBURG, Judges. Circuit * Perhaps, appellants attempted Judge participate if one of the Circuit Tatel did not in the explain delay his in terms other than the merits rehearing in banc order. might of his claim the case be different.

Case Details

Case Name: Dennis A. Dickson v. Secretary of Defense

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 31, 1995

Citation: 68 F.3d 1396

Docket Number: 94-5190, 94-5227

Court Abbreviation: D.C. Cir.