Blevins v. Orr, 83-1097

• Decision Date: 02 December 1983
• Docket Number: No. 83-1097,83-1097
• Citation: 721 F.2d 1419
• Parties: Thomas E. BLEVINS, Lieutenant Colonel, Retired, Appellant, v. The Honorable Verne ORR, Secretary of the Air Force.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1419

721 F.2d 1419

232 U.S.App.D.C. 258

Thomas E. BLEVINS, Lieutenant Colonel, Retired, Appellant, v. The Honorable Verne ORR, Secretary of the Air Force.

No. 83-1097.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 27, 1983.

Decided Dec. 2, 1983.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-1069).

William H. Schaap, Washington, D.C., with whom Richard P. Fox, Los Angeles, Cal., was on the brief for appellant.

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before WALD, MIKVA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

Lieutenant Colonel Thomas E. Blevins, United States Air Force, retired, brought this action in the United States District Court for the District of Columbia, challenging the Air Force's decision not to promote him to the rank of colonel. The District Court concluded that the Air Force's determination was not arbitrary, capricious or otherwise unlawful. Blevins v. Orr, 553 F.Supp. 750 (D.D.C.1982). This appeal followed. We affirm.

I

The facts are not in dispute. From April 1972 to February 1979, Lt. Col. Blevins was considered for promotion to the rank of colonel by twelve separate Air Force selection boards. On each occasion, appellant was passed over for promotion. He retired from active duty in October 1980. ¹

Both before and since his retirement, appellant has challenged his non-selection for promotion in a series of administrative and judicial actions. Only those portions of this protracted history relevant to our decision are recounted here; a more detailed account of appellant's efforts to secure promotion is set forth in the District Court's opinion.

Lt. Col. Blevins' first attack began in 1974 with the filing of a petition with the Air Force Board for the Correction of Military Records (AFBCMR) appealing from the adverse decision of the Fiscal Year 1975 (FY 75) promotion selection board, the entity charged with making recommendations to the Secretary of the Air Force with respect to officer promotions. Appellant alleged that his personnel file was inaccurate and incomplete, thereby rendering the decision of the FY 75 selection board, the third such board to consider him for promotion, improper. Joint Appendix (J.A.) at 14, 60. The AFBCMR, which pursuant to 10 U.S.C. Sec. 1552 (1982) has broad powers to change military records in order to "correct an error or remove an injustice," denied appellant's petition.

Appellant thereupon filed an action in United States District Court for the Central District of California, challenging the AFBCMR's action. On October 28, 1976, the California federal district court dismissed the suit. Blevins v. Plummer, No. CV 75-4336-F, J.A. at 145-46. The United States Court of Appeals for the Ninth Circuit affirmed, Blevins v. Plummer, 613 F.2d 767 (9th Cir.1980), thus bringing to a close appellant's first round of challenges.

Prior to the Ninth Circuit's decision, however, Lt. Col. Blevins opened attack on a second front by filing yet another petition with the AFBCMR. This petition, based upon materials which appellant received in discovery from the Air Force during the prior federal district court proceedings, challenged his rejection by the FY 75 promotion selection board on the ground that improper Air Force actions had infected the selection board's proceedings.

Specifically, Lt. Col. Blevins claimed that the Air Force, first, had improperly split the FY 75 colonel selection board, as well as the 1975 "year group" of promotion candidates, into two groups and, second, had issued improper instructions to the FY 75 board. ² The confluence of these two alleged irregularities, he contended, resulted in the total number of promotions recommended by the split board falling below the normal level of promotions. ³ The policies followed by the FY 75 colonel selection board, according to appellant's petition, "arbitrarily and capriciously prevented [him] from competing for available (unused) promotion quotas," and that "[a]s a result, [he] was not selected for promotion." J.A. at 149-50.

The AFBCMR rejected appellant's second petition in September 1979 and, following reconsideration, again in April 1980. Lt Col. Blevins challenged the AFBCMR's decision by filing the present action in April 1982. The complaint alleged that the Air Force acted "arbitrarily and capriciously" and violated appellant's due process rights. J.A. at 6.

Appellee filed a motion to dismiss, contending that the present action was, by virtue of the Ninth Circuit's earlier decision, barred by the doctrines of res judicata and collateral estoppel, and by the applicable six-year statute of limitations set forth in 28 U.S.C. Sec. 2401(a) (Supp. V 1981). In ruling on appellee's motion to dismiss, the District Court held that the Ninth Circuit decision was res judicata as to any claim that appellant's personnel file was inaccurate or incomplete. However, the court agreed with appellant's contention that the Ninth Circuit decision presented no bar to the claim in the instant action that "in several ways the FY 75 Colonel Selection Board was improperly constricted in the number of promotions it could recommend." 553 F.Supp. at 751. Addressing this allegation specifically, the District Court granted appellee's motion to dismiss, concluding:

Blevins' argument before this Court ... is essentially that the Air Force should have selected more officers for promotion to Colonel in FY 75 and that he should have been one of those officers. The Court, however, has neither the inclination nor the power to scrutinize the decisions of the United States military forces concerning the promotion needs for each officer rank, or the decisions as to which individual officers can best meet those needs. Id.

The District Court further concluded that "[t]he number of promotions to Air Force Colonel, and the officers entitled to those promotions to satisfy military requirements in FY 75, were matters for the Air Force to decide, not the courts." 553 F.Supp. at 752. As a result, the court held "the AFBCMR's decision not to retroactively promote Blevins is neither arbitrary, capricious, nor otherwise unlawful and must be upheld." Id.

II

In this court, appellant maintains that the District Court "erred in not reviewing the [AFBCMR's] challenged decision" and "in holding that the Air Force had absolute, unreviewable authority in the field of promotions." Appellant's Brief at 6. Appellant cites in this respect several cases in which federal courts "have reviewed allegations that actions of promotion boards and the officials involved in military promotions, have been irregular." Id. at 8-9. While appellant correctly maintains that certain decisions of military records correction boards have been deemed reviewable by federal courts, he misperceives the rationale of the District Court's opinion in this case.

At the outset, judicial review of military decisions must be guided by the Supreme Court's clear pronouncement in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), where Justice Jackson, speaking for the Court, concluded:

The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate [military] matters as the [military] must be scrupulous not to intervene in judicial matters. Id., 345 U.S. at 94, 73 S.Ct. at 540.

Since Orloff, the doctrine of nonreviewability of military decisions has undergone considerable modification, as courts have evinced increased willingness to review military actions alleged to contravene express constitutional, statutory or regulatory requirements. See Dilley v. Alexander, 603 F.2d 914, 920 (D.C.Cir.1979). As Judge MacKinnon, speaking for this court in Dilley, concluded: "It is the duty of the federal courts to inquire whether an action of a military agency conforms to the law, or is instead arbitrary, capricious or contrary to the statutes and regulations governing that agency." Id. It is to this limited but critical inquiry that we now turn.

As to appellant's constitutional claim, it is clear that military promotion decisions simpliciter are not susceptible to due process challenges, inasmuch as there exists no property or liberty interest in a military promotion per se. See generally, Knehans v. Alexander, 566 F.2d 312, 314 (D.C.Cir.1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 83 (1978); Pauls v. Secretary of the Air Force, 457 F.2d 294, 297 (1st Cir.1972) (military officers "have no constitutional right to be promoted or retained in service"); cf. Board of Regents v. Roth, 408 U.S. 564, 572-78, 92 S.Ct. 2701, 2706-09, 33 L.Ed.2d 548 (1972).

Absent the requisite constitutional underpinning to a claimed interest in a military promotion, the gravamen of appellant's complaint therefore is that the Air Force acted "arbitrarily and capriciously" with respect to his candidacy for...