Musengo v. White, 00-5347.

Decision Date16 April 2002
Docket NumberNo. 00-5347.,00-5347.
Citation286 F.3d 535
PartiesJames MUSENGO, Appellant, v. Thomas E. WHITE, Secretary of the Army, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

I

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 ¶ 92(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, Musengo appealed to the Army Board for Correction of Military Records. The Correction Board is the "next agency in the Army's redress system," AR 623-105, at ¶ 9-5(f), and has the power to direct changes in military records in order to correct "material error or injustice," AR 15-185, at ¶ 1-8(b).4 The Board concluded that "the contested OER appears to represent a fair, objective and valid appraisal of [Musengo's] demonstrated performance and potential, and represents the considered opinion and objective judgment of the senior rater at the time of preparation." ABCMR Decision at 4 (March 30, 1994), reproduced at J.A. 5, 8. Because it was "not convinced that the senior rater was not aware that his center of mass was within the top block at the time he rated the applicant," the Board denied Musengo's appeal. Id.

Musengo then filed the instant action in the United States District Court for the District of Columbia. He alleged that the Correction Board's decision was arbitrary and capricious in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and sought removal of the disputed OER from his military record. The district court granted summary judgment in favor of the Army, and this appeal followed.

II

Under Army regulations, OERs are presumed to be "administratively correct" and to "[r]epresent the considered opinions and objective judgment of the rating officials at the time of preparation." AR 623-105, at ¶ 5-32(a). An applicant petitioning the Correction Board to amend or delete a report has the burden of "produc[ing] evidence that establishes clearly and convincingly" that the "presumption of regularity" should not apply, and that "[a]ction is warranted to correct a material error, inaccuracy, or injustice." Id. ¶ 97(a) (citing id. ¶ 5-32); see also Frizelle v. Slater, 111 F.3d 172, 178 (D.C.Cir.1997). Although this court has jurisdiction to review decisions of the Correction Board,5 we do so under an "unusually deferential application of the `arbitrary or capricious' standard" of the APA. Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989); see Cone, 223 F.3d at 793; Kidwell v. Department of the Army, 56 F.3d 279, 286 (D.C.Cir.1995). We review de novo the district court's ruling, on cross-motions for summary judgment, that the Correction Board did not act arbitrarily or capriciously in this case. See Cone, 223 F.3d at 793.

Musengo offers three arguments in support of his contention that the Board acted unlawfully in denying his application for correction. We consider these arguments below.

A

Musengo's first contention is that his rating should be vacated because senior rater Barrow violated AR 623-105, at ¶ 4-16(b). That regulation states that a senior rater's evaluation "is based on the premise that in a representative sample of 100 officers of the same grade or grade grouping (Armywide), the relative potential of such a sample will approximate a bell-shaped normal distribution pattern." Musengo contends that because Barrow's evaluations did not approximate a bell-shaped curve, the senior rater violated the governing regulation and the Board acted arbitrarily in refusing to delete the second-block rating from his OER.

We rejected the same argument in Cone. As we explained in that case, although the regulations direct the senior rater to base his or her ratings on the "premise" that evaluations of an Army-wide representative sample will approximate a bell-shaped curve, "they do not require adherence to a bell-shaped curve" for the evaluations of any individual rater's ratees in a given rating period. Cone, 223 F.3d at 793. Moreover, even if Barrow was lax in adhering to the regulation's premise, the Army "anticipates, and compensates for, the fallibility of individual raters by requiring that each rater's personal profile ... be included in the OER of each officer he or she reviews." Id. at 794. The profile permits reviewers "to place the rated officer's OER in perspective by revealing the senior rater's general rating tendency," AR 623-105, at ¶ 4-16(d)(5)(a), including his or her "tendency to inflate or deflate ratings," id. ¶ 9-7(f). Accordingly, as in Cone, it was reasonable for the Correction Board to refuse to alter the plaintiff's...

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