286 F.3d 535 (D.C. Cir. 2002), 00-5347, Musengo v. White
|Citation:||286 F.3d 535|
|Party Name:||Musengo v. White|
|Case Date:||April 16, 2002|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Oct. 9, 2001.
Appeal from the United States District Court for the District of Columbia (No. 99cv01884).
Charles W. Gittins argued the cause and filed the briefs for appellant.
Diane M. Sullivan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: SENTELLE, RANDOLPH and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge:
Plaintiff James Musengo challenges the Army's refusal to remove an Officer Evaluation Report from his military record. The District Court granted summary judgment against Musengo, concluding that the Army Board for Correction of Military Records did not act arbitrarily or capriciously in refusing to expunge the report. We affirm.
Musengo is currently a major in the United States Army Reserve. During the period at issue in this case, he was a captain on active duty, instructing members of the Reserve Officer Training Corps and teaching courses in military science at the University of Akron. In July 1992, Musengo received an Officer Evaluation Report (OER) assessing his performance from June 24, 1991 to June 23, 1992. We have recently described in detail the officer rating system employed by the Army at the time of Musengo's evaluation, see Cone v. Caldera, 223 F.3d 789, 790-91 (D.C. Cir. 2000), and we therefore sketch it only briefly here. 1
An OER is used to evaluate an officer's performance and career potential. See Army Regulation (AR) 623-105, at ¶ 1-6(a) (Apr. 30, 1992). At least two of the officer's superiors prepare the OER. The first is a "rater," who directly supervises the rated officer and is familiar with his or her day-to-day performance. Id. ¶ 3-4. The second is a "senior rater"--here, Colonel Joseph M. Barrow--who is charged with "evaluat[ing] the rated officer from a broad organizational perspective," including measuring the officer's potential for promotion relative to the larger group of officers under the senior rater's command. Id. ¶ 3-10(a).
The OER form contains blanks for both a numerical and a narrative assessment of the rated officer. In Part VII(a), the senior rater is to check one of a column of nine blocks that compare "the rated officer's
potential with all other officers of the same grade." Id. ¶ 4-16(b). 2 The rater's evaluation is to be based on the premise that in a representative sample of officers Army-wide, the distribution of ratings "will approximate a bell-shaped normal distribution pattern." Id. 3 According to the regulations, this means "that in a representative sample of 100 officers of the same grade or grade grouping (Army-wide) only one officer can reasonably be expected to be placed in the top block." Id. ¶ 4-16(c). Another two are expected to fall in the second block, and so on. See id. fig. 4-4. The center block, block five, is expected to be the rating achieved by 60 officers out of a representative 100. Id.
Once the OER is completed, the Army compares the senior rater's assessment of the individual officer to the senior rater's rating history for all officers of the same grade--known as the senior rater's "profile." Id. ¶ ¶ 2-5,4-16(d)(5)(a). By comparing a specific officer's OER to his senior rater's profile, the Army can discern whether that officer performed above, at, or below the "center-of-mass"--i.e., the median ranking--of all officers ranked by the same senior rater. Moreover, by comparing the profiles of different senior raters, the Army can determine whether one rater's "rating tendency" is more lenient than that of another. Id. ¶ 4-16(d)(5)(a); see id. ¶ 9-7(f).
On the OER that is in dispute in this case, Musengo's senior rater, Colonel Barrow, gave Musengo a second-block rating--corresponding to the top 2-3% of Army captains according to the expected distribution pattern set out in the regulations. Id. fig. 4-4. Within Barrow's personal profile for the relevant time period, however, this placed Musengo below the center-of-mass of the captains Barrow rated. Of 54 captain reports completed by Barrow during the period, 32 contained top-block ratings, 20 contained second-block ratings, and 2 placed captains in the third block. See Joint Appendix (J.A.) at 32.
Concerned that a below-center-of-mass rating would hurt his chances of promotion, Musengo contacted Barrow, who told Musengo that he had intended to rate Musengo at center-of-mass, and that he had thought the second-block rating was in fact his center-of-mass. Armed with this information, Musengo appealed to the Officer Special Review Board (OSRB), which has the power to correct substantive inaccuracies in an OER. AR 623-105, at ¶ 9-2(i). After the OSRB denied Musengo's initial request to delete the senior rater's numerical rating from his OER, Musengo obtained a supporting letter from Barrow and resubmitted his request. In the letter, Barrow stated: "It was my clear intent to give CPT Musengo a strong center of mass evaluation on this OER and also get him promoted." J.A. at 11. Musengo also provided the OSRB with the transcript of a deposition in which Barrow reiterated that "it was my desire that [Musengo] be placed in center of mass," and
that "I believed that my center of mass was a two block at that time." J.A. at 19. The OSRB denied Musengo's second appeal. Thereafter, Musengo filed three more appeals to the OSRB, all of which were likewise unsuccessful.
Following the denial of his requests by the OSRB...
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