Robert McDONOUGH, Plaintiff, v. Raymond Edwin MABUS, Jr., Secretary of the Navy, Defendant.
Civil Action No. 10-01428 (BAH).
United States District Court, District of Columbia.
Nov. 29, 2012.
899 F. Supp. 2d 33
BERYL A. HOWELL, District Judge.
Carl Ezekiel Ross, U.S. Attorney‘s Office, Washington, DC, for Defendant.
BERYL A. HOWELL, District Judge.
The plaintiff, Robert McDonough, an active duty Naval Service Lieutenant, brings this action against defendant Ray Mabus, Jr., in his official capacity as Secretary of the Navy, under the Administrative Procedure Act (“APA“),
Pending before the Court are cross-motions for summary judgment. See ECF Nos. 18, 21. For the reasons explained below, the plaintiff‘s motion for summary judgment is DENIED and the defendant‘s motion for summary judgment is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. FACTUAL ALLEGATIONS
1. The Plaintiff‘s Enlistment in the United States Navy
On January 22, 1999, the plaintiff entered the United States Naval Service Officer Candidates School (“OCS“) for training to become a commissioned officer of the United States Navy. Pl.‘s Statement of Facts (“Pl.‘s Facts“), ECF No. 21-1, ¶ 1; Def.‘s Statement of Facts (“Def.‘s Facts“), ECF No. 18, ¶ 1; Compl. ¶ 5.
The plaintiff completed OCS, and, on April 23, 1999, he was commissioned as an Ensign (O-1) in the United States Navy Reserve-active (“USNR-active“). Compl. ¶ 6; Def.‘s Mem. in Supp. of Mot. for Summ. J. (“Def.‘s Mem.“) at 2. Two years later, on April 23, 2001, the plaintiff was
In August 2003, the plaintiff, while still on active duty in the Navy, began a night school program at Roger Williams Law School in Rhode Island while continuing his naval service during the day. Compl. ¶ 9; Pl.‘s Facts ¶¶ 6-7; Def.‘s Facts ¶¶ 6-7.
On December 31, 2005, before he graduated from law school, the plaintiff was released from active duty “while retaining an obligation in the Individual Ready Reserve (“IRR“) until January 22, 2007.” Def.‘s Facts ¶ 8; Pl.‘s Facts ¶ 8; Compl. ¶ 10. The IRR is a component of reserve forces where reservists do not participate in the daily drills and activities of their service branch but are eligible for mobilization on command of the Secretary of the Navy. See
2. The Plaintiff‘s Appointment to the Navy Judge Advocate General‘s Corps
In May 2006, while still retaining a reserve obligation in the IRR, the plaintiff graduated from law school. Compl. ¶ 12; Def.‘s Facts ¶¶ 6-7. On August 25, 2006, the plaintiff was recommissioned as a reserve Ensign in the Navy JAGC student program pursuant to
Concurrently with his new appointment, the plaintiff‘s lineal number was modified from 09531800 to 13538600, and his date of rank as Lieutenant was modified from May 1, 2003 to September 29, 2006. Compl. ¶ 18, Pl.‘s Facts ¶ 13; Def.‘s Facts ¶ 13.
B. STATUTORY FRAMEWORK
At issue in this lawsuit is the calculation of the plaintiff‘s rank when he entered the Navy JAGC in 2006. See Compl. ¶¶ 18, 19. The defendant contends in its Motion for Summary Judgment that the plaintiff‘s date of rank was calculated correctly pursuant to
1. Statutory Provisions at Issue
At the outset, the Court must address a point of confusion in the challenged BCNR decision of April 1, 2011 and the parties’ briefing, namely whether
The BCNR, in its final decision of April 1, 2011 stated that the plaintiff‘s “Regular appointment in the [JAGC] was computed in accordance with [
Consistent with the BCNR decision, the defendant‘s Motion for Summary Judgment and Statement of Facts refer to
The plaintiff‘s filings do not clarify this matter. The plaintiff‘s Complaint, filed before the final BCNR decision at issue (the final BCNR decision was made on remand from this Court), states that
2. 10 U.S.C. § 533
Section 533 of Title 10 of the United States Code governs the calculation of service credit for a “person receiving an original appointment in a commissioned grade” in the United States Navy. According to
Pursuant to this statute—as well as
3. Department of Defense Directive 1312.310
Department of Defense Directive 1312.3, see AR 108, implements
Naval Operations Instruction 1120.11 establishes Navy-specific regulations governing the awarding of entry grade credit under
C. PROCEDURAL HISTORY
The plaintiff alleges that, since “[a] service member‘s date of rank directly affects the date on which that service member may be eligible for promotion,” Def.‘s Facts ¶ 15, following the calculation of his rank after entering the JAGC in 2006, he immediately entered into “negotiations with Navy Personnel Command” in order to correct what he alleges was the erroneous deprivation of 41 months of prior service time. Compl. ¶ 20. On November 14, 2007, Navy Personnel Command (“NPC“) denied relief, finding that the plaintiff‘s rank had been properly calculated. Id. ¶ 21; Pl.‘s Facts ¶ 19; Def.‘s Facts ¶ 19.
The plaintiff then attempted to seek relief by appealing to the BCNR. Compl. ¶ 22. The plaintiff sought from the BCNR, inter alia, restoration of his original date of rank and lineal number, and consideration for promotion along with his year group. Id. ¶ 23; Pl.‘s Facts ¶ 20; Def.‘s Facts ¶ 20. The BCNR denied the plaintiff‘s appeal on August 8, 2008, ruling that the plaintiff‘s date of rank and lineal number had been properly calculated. Pl.‘s Facts ¶ 21; Def.‘s Facts ¶ 21; AR 29-31.
The plaintiff requested that the BCNR reconsider its decision, clarifying that he was not seeking constructive credit for time spent in law school. Compl ¶ 32; Pl.‘s Facts ¶ 22; Def.‘s Facts ¶ 22. On June 17, 2009, the BCNR again denied the plaintiff relief on the grounds that “[the p]laintiff failed to provide any ‘new or material information’ for the BCNR to consider.” Def.‘s Facts ¶ 23; see also Compl. ¶ 33; Pl.‘s Facts ¶ 23.
The plaintiff then filed this lawsuit, on August 23, 2010, in the District Court for the District of Columbia. See ECF No. 1. In November 2010, upon a joint request from the parties, the Court remanded the case back to the BCNR for further review. See Minute Order (Nov. 5, 2010); Pl.‘s Mem. at 5; Def.‘s Facts ¶ 25; AR Appx. 77-79.
The BCNR then sought an advisory opinion from the NPC, see AR Appx. at 5, which the NPC provided to the BCNR on January 26, 2011. Pl.‘s Facts ¶ 28; Def.‘s Facts ¶ 28; AR Appx. 5-20. The NPC concluded that the plaintiff‘s entry grade credit and date of rank were computed
The NPC advisory opinion stated that the Secretary of Defense implements section 12207 through Department of Defense Directive 1312.3, pursuant to which “entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of constructive service credit allowed.” Id. According to the NPC advisory opinion, the plaintiff was not entitled to any constructive service credit because he was in active status while in law school, but the Secretary of the Navy was “authorized to award” the plaintiff EGC for his previous commissioned service. Id. at 7.
The NPC advisory opinion further explained that “[c]onsistent with DODDIR 1312.3, Chief of Naval Operations Instruction (OPNAVINST) 1120.11 regulates the standards for Appointment of Regular and Reserve officers in the Navy JAGC.” Id. Pursuant to paragraph 12 of that regulation, EGC for JAGC officers, barring exceptions not applicable here, is capped at 48 months. See id. It was based on this regulation, consistent with the statutory authority under title 10, and consistent with DODDIR 1312.3, that the plaintiff‘s entry grade credit was capped at 48 months.13
On April 11, 2011, a three-member panel of the BCNR, relying in large part on the reasoning in the NPC advisory opinion, declined to grant the plaintiff relief. AR Appx. at 2-4. The BCNR first clarified in its decision that, contrary to what the NPC advisory opinion stated, the plaintiff‘s entry grade credit when he entered the JAGC was “computed in accordance with [
Specifically, the BCNR found that
Following the BCNR‘s decision, the defendant filed a Motion for Summary Judgment in this Court. See ECF No. 18. The plaintiff filed a Cross-Motion for Summary Judgment. See ECF No. 21. The stay was then lifted, and these two motions are pending before this Court.
II. STANDARD OF REVIEW
A. Summary Judgment
A court shall grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
B. “Arbitrary and Capricious” under the Administrative Procedure Act
Pursuant to
Under the APA, a court defers to the agency unless the agency‘s action is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Indeed, under the “arbitrary and capricious” standard of review, a court presumes that the agency‘s action is valid. Envtl. Def. Fund Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981); see also Grid Radio v. FCC, 278 F.3d 1314, 1322 (D.C. Cir. 2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000); CS-360, LLC v. U.S. Dep‘t of Veteran Affairs, 846 F. Supp. 2d 171, 185 (D.D.C. 2012). Nevertheless, if the agency “failed to provide a reasoned explanation, or where the record belies the agency‘s conclusion, [the court] must undo its action.” Cnty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999). At a minimum, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); Kight v. United States, 850 F. Supp. 2d 165, 169 (D.D.C. 2012); Rudo v. Geren, 818 F. Supp. 2d 17, 24 (D.D.C. 2011) (“As long as an agency has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made, courts will not disturb the agency‘s action.“) (internal quotation marks and citation omitted). “A reviewing court will ‘uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.‘” Frizelle, 111 F.3d at 176 (quoting Dickson v. Sec‘y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995)).
C. Deference Due to Military Corrections Boards
In the D.C. Circuit, review of the actions of military corrections boards is “unusually deferential.” Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006) (citing Kreis v. Sec‘y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)); see also Appleby v. Geren, 330 Fed. Appx. 196, 198 (D.C. Cir. 2009) (unpublished). “Even in the face of an ‘undisputed error’ or ‘conceded injustice,’ we must deny the petition for review if the Board offered an adequate explanation ‘that a court can measure.‘” Id. (quoting Kreis, 866 F.2d at 1514).
Nevertheless, there is a limit to the deference that this Court owes to agency action, even with respect to military matters. “[T]he law in this Circuit ... differentiates between ‘military judgment requiring military expertise,’ which should be reviewed under the ‘unusually deferential’ standard, and ‘review of the Board‘s application of a procedural regulation governing its case adjudication process,’ which is reviewed under the traditional arbitrary and capricious APA standard.” Wilhelmus v. Geren, 796 F. Supp. 2d 157, 162 (D.D.C. 2011) (citing Kreis v. Sec‘y of Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005)). The plaintiff asserts that in this case no heightened deference is due because the BCNR‘s decision “required no specialized military judgment.” Pl.‘s Mem. at 8. This Circuit, however, has taken a broad view of military expertise to which deference is owed, extending it to the military records correction boards’ personnel decisions. See Cone, 223 F.3d at 793 (applying heightened deference in a case involving
III. DISCUSSION
The plaintiff argues that the BCNR‘s decision to limit the plaintiff‘s prior service credit to 48 months was incorrect, and caused the plaintiff to “lose promotion opportunities.” Pl.‘s Mem. at 1. Specifically, the plaintiff alleges that the calculation of the plaintiff‘s date of rank “is governed unambiguously by
The Court first examines
A. 10 U.S.C. § 533 Is Not Ambiguous.14
The plaintiff argues that the “calculation of Plaintiff‘s date of rank is governed unambiguously by
The very next prong of the statute, however, gives the Secretary of Defense authority to issue regulations related to the granting of prior commissioned service credit. Specifically,
The Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited under paragraph (1), or to deny any such credit, in the case of a person who at the time of such appointment is credited with constructive service under subsection (b).
This statute is unambiguous and plainly states that the Secretary of Defense “shall prescribe regulations” concerning the amount of prior commissioned service credit a person receiving an original appointment may be credited. The plaintiff argues unavailingly that section 533(a)(2) “taken in conjunction with section 533(a)(1) means that a service member gets full credit for prior commissioned service unless that service member got constructive service credit in which case the Secretary can limit or deny prior commissioned service credit.” Pl.‘s Mem. at 11. In other words, the plaintiff reads the conditional clause, “in the case of a person who at the time of such appointment is credited with constructive service” as a restriction on the Secretary‘s authority both “to limit the amount of prior commissioned service [that] may be credited” and “to deny any such credit” altogether. The plaintiff explains that “[h]owever, if there is no constructive service credit section, 533(a)(1) applies and all prior service is credited.” Pl.‘s Mem. at 11. That is not a correct reading of the statute.
The plain language of the statutory provision authorizes the Secretary of Defense to promulgate regulations to “limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited.”
The plaintiff further argues that there is “no rational basis” for concluding that the constructive credit clause only modifies the denial provision because that would mean the Secretary of Defense “could only deny credit to constructive service members; but could not limit credit to constructive credit service members.” Pl.‘s Mem. at 12. In other words, the plaintiff contends that the conditional clause relating to constructive service members either applies very broadly (restricting the Secretary‘s authority both to limit or to deny credit), or very narrowly (restricting the Secretary‘s authority to only grant or deny constructive credit, rather than also having the authority to limit it). The Court does not agree with this strained reading of the provision. The defendant has offered a rational basis for the statutory distinction
Accordingly, the Court agrees with the defendant—and with the BCNR final decision—that “title 10 of the United States Code, section 533(a)(2) authorizes [the Secretary of Defense] to prescribe regulations limiting credit for prior active commissioned service, or to deny any such credit in the case of a person credited with constructive service.” AR Appx. at 3-4. Given the plain language of the statute, the Court further agrees with BCNR that the “applicability of the authority to limit credit for prior active commissioned service is not restricted to persons credited with constructive service[.]” Id. at 4.
B. The Department of Defense Promulgated Regulations Pursuant to its Authority Under 10 U.S.C. § 533(a)(2) and 10 U.S.C. § 12207(a)(2) .
Pursuant to the directive in
1. Department of Defense Directive 1312.3
Pursuant to its authority under
As the defendant explains, this means that a person joining the JAGC program who has prior experience practicing law, or working in the “same competitive category,” may receive more service credit than a person, like the plaintiff, who had experience in the military performing work outside of the competitive category in which he is now working. Def.‘s Mem. at 11.
2. Chief of Naval Operations Instructions 1120.11
Consistent both with
C. The Plaintiff‘s Remaining Arguments that the BCNR‘s Decision Was Arbitrary and Capricious Are Also Unavailing.
The Court now turns to the plaintiff‘s remaining arguments that the BCNR‘s decision was arbitrary and capricious. First, the Court addresses the plaintiff‘s argument that
1. The Plaintiff‘s Claim For Relief Under 10 U.S.C. 533(f) Is Unavailing.
Perhaps realizing the futility of his arguments regarding
The plaintiff provides no legal support for the argument that he was appointed under
Moreover, even if section 533(f) did apply to the plaintiff‘s appointment as a Lieutenant, it is far from clear that the plaintiff would be entitled to a promotion in rank under that provision. Def.‘s Mem. at 16. Under
A reserve officer (other than a warrant officer) who receives an original appointment as an officer shall
(1) in the case of an officer on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer on the active-duty list immediately before the appointment;
and
(2) in the case of an officer not on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank which the officer would have held had the officer been serving on the active-duty list on the date of the appointment as a regular officer.
Immediately before his regular appointment to the JAGC as a Lieutenant, the plaintiff was not on the active duty list, but was a reservist at the rank of Ensign in the JAGC. See Compl. ¶¶ 13-15 (noting that, on August 21, 2006, “Plaintiff was recommissioned as an Ensign” after serving as a drilling reservist, and that it wasn‘t until Sept. 12, 2006 that he “received active duty orders“); AR Appx. 8 (NPC advisory opinion stating that, immediately before his appointment as a Lieutenant in the JAGC, the plaintiff was not on the “active duty list” but was on the “reserve active status list“); see also Pl.‘s Mem. at 14 (admitting that the plaintiff “went from Reservist to Regular status in the JAGC” when he was appointed as a Lieutenant in September 2006). Since the plaintiff was a reserve Ensign prior to his appointment as a regular Lieutenant in September 2006, which he claims “was done pursuant to section 533(f),” Pl.‘s Mem. at 14, pursuant to the plain language of
Furthermore, the Court sees no reason why the four year service credit cap from
2. The Plaintiff is Not Entitled to Equitable Relief.
Finally, the Court turns to the plaintiff‘s argument that the Court should set aside the BCNR‘s decision because it “has [w]orked an [i]nequity” upon him. Pl.‘s Mem. at 15. The plaintiff argues that “Sections 533(a)(1) and 12207(a)(1) of Title 10 reflect the fundamental notion that men and women who serve in the Armed Forces of this country deserve what they have earned,” and that it is “inconceivable” that Congress would have intended the “draconian consequence” of the plaintiff being “stripped” of 41 months of active duty service. Pl.‘s Mem. at 15. The Court is not convinced that there is any such injustice here.
Congress gave the Secretary of Defense authority to issue regulations limiting the rank of new lawyers with prior service for the rational reason of ensuring that more experienced lawyers are not supervised by inexperienced ones who may have a higher rank due solely to their prior service outside the specialized service. Capping the credit for prior service for officers newly appointed in the JAGC thus helps maintain discipline, order, and respect within the ranks. As the defendant argues, “th[is] system ... prevents unfairness to Plaintiff by assuring that officers like himself, with little legal experience, are not forced to compete for promotions with JAGs of the same rank that have significantly more legal experience.” Def.‘s Reply at 5-6. Moreover, this limit on prior service credit helps to promote higher quality legal work on behalf of the JAGC by ensuring that the more experienced lawyers are also the ones with a higher rank, with the authority by virtue of their rank to issue orders to less experienced lawyers.
An example helps illustrate how the plaintiff‘s request for relief in this case may lead to untenable results: under the plaintiff‘s reasoning, a person who decided to go to law school later in life, and entered the JAGC after ten years of prior commissioned service would be entitled to the full ten years of prior commissioned service, and would be competing for promotion with lawyers who have ten years of lawyering experience. That is like a newly-minted lawyer entering a law firm and, instead of taking up his or her place as a first-year associate being forced immediately to compete with lawyers eligible to make partner in the firm. The new lawyer would not be taken seriously in this competition; furthermore, the lawyer would almost certainly not have the lawyering experience to do what is required of a partner. This same reasoning must apply in the JAGC. Congress could not possibly have intended for a new lawyer to enter the JAGC and immediately be competing with colleagues with many more years of legal experience. That would not only provide a disservice to the new lawyer, but also endanger the respect for rank and discipline that is fundamental to military service. The Navy reasonably capped the plaintiff at four years of prior commissioned service, consistent with its regulations and statutory authority. There was nothing arbitrary and capricious about the BCNR‘s denial of the plaintiff‘s request for relief.
IV. CONCLUSION
For the reasons explained above, the defendant‘s motion for summary judgment is GRANTED, and the plaintiff‘s cross-motion for summary judgment is DE-
BERYL A. HOWELL
UNITED STATES DISTRICT JUDGE