Coe v. McHugh, Civil Action No.: 12–1059 (RC)

• Decision Date: 26 September 2013
• Docket Number: Civil Action No.: 12–1059 (RC)
• Citation: 968 F.Supp.2d 237
• Parties: Jethro Coe, Jr., Plaintiff, v. John McHugh, Defendant.
• Court: U.S. District Court — District of Columbia

968 F.Supp.2d 237

Jethro Coe, Jr., Plaintiff,

v.John McHugh, Defendant.

Civil Action No.: 12–1059 (RC)

United States District Court, District of Columbia.

September 26, 2013

Jane Carol Norman, Bond & Norman, PLLC, Washington, DC, for Plaintiff.

John J. Gowel, United States Attorney's Office for the District of Colorado, Washington, DC, for Defendant.

Re Document No.: 10, 14

MEMORANDUM OPINION

Granting the Defendant's Motion to Dismiss or in the Alternative, for Summary Judgment; Denying the Plaintiff's Cross–Motion for Summary Judgment

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This action seeks review of a decision by the Army Board for Correction of Military Records (“ABCMR” or “Board”). The plaintiff is a U.S. Army veteran, who claims that when he served in the military, he unjustly received an adverse Officer Evaluation Report (“OER”). He later obtained a sworn statement from the lieutenant colonel who had written the allegedly adverse OER, which recanted his negative comments and review. The plaintiff then filed an application with the ABCMR to amend the OER, which was denied. The plaintiff now files this action, appealing that decision, pursuant to the Administrative Procedure Act (“APA”). He seeks correction of his military record, and also claims that because of the allegedly adverse OER, he was barred from promotion and was essentially forced to retire. The defendant has filed a motion to dismiss, or in the alternative, for summary judgment. In response, the plaintiff has filed a cross-motion for summary judgment. Because the Board evaluated all of the evidence before it and applied the relevant Army regulation in its analysis, its decision was well-reasoned and not arbitrary and capricious. The defendant's motion for summary judgment is therefore granted, and the plaintiff's claims are dismissed.

II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The plaintiff is a U.S. Army veteran with thirty years of service. Pl's SMF ¶ 1. At some point between October of 1992 and July of 1993, while serving in the Army, he received a directive from the Department of the Army USSOCOM to cancel an operational exercise that had been requested by the Deputy Chief of Staff, Logistics, who was the plaintiff's senior rater. Id. ¶ 5. The plaintiff was instructed to submit a Disposition Form canceling the exercise, which he did. Id. ¶ 6. He forwarded the form to his rater and senior rater, explaining what had happened. Id. The plaintiff claims that upon return from temporary duty, the senior rater was upset that the plaintiff had canceled his operation. Id. In August of 1993, the plaintiff received an OER that stated that the plaintiff's “overbearing nature ha[d] diminished his relationship with people and overall effectiveness.” Def.'s SMF ¶ 10. The plaintiff claims that the OER was written by Lieutenant Colonel Seetin at the direction of the senior rater, who was angry at the plaintiff for having canceled the operation. Pl.'s SMF ¶ 8.

In 2010, the plaintiff obtained a sworn statement from Lieutenant Colonel Seetin, which recanted his negative comments in the OER and substituted positive language in its place. Id. ¶ 9. On July 16, 2010, the plaintiff applied to the ABCMR, seeking corrections to the OER, and asserting that the OER was the result of bias and prejudice by the rating officials. Def.'s SMF ¶ 19. On September 23, 2010, the ABCMR, in a unanimous decision, denied the plaintiff's request for corrections to the OER. Id. ¶ 21. The plaintiff has now filed this action appealing that decision, pursuant to the Administrative Procedure Act, seeking correction of that record. He also alleges that because of the allegedly adverse OER, he was barred from promotion and was essentially forced to retire, in violation of his Fifth Amendment due process rights. The defendant has filed a motion to dismiss, or in the alternative, for summary judgment. In response, the plaintiff has filed a cross-motion for summary judgment. The Court now turns to the parties' arguments and the applicable legal standards.

III. LEGAL STANDARDS

A. Legal Standard for Summary Judgment When Reviewing a Final Agency Action

Under Rule 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. In a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does not apply because of the court's limited role in reviewing the administrative record. SeeNat'l Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, *7 (D.D.C.2005); Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995), amended on other grounds,967 F.Supp. 6 (D.D.C.1997).

Under the APA, the agency's role is to resolve factual issues to arrive at a decision that is supported by the administrative record, while “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” SeeOccidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985); see alsoNorthwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir.1994) (“[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th [e] matter does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record.”). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. SeeRichards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977), cited inBloch v. Powell, 227 F.Supp.2d 25, 31 (D.D.C.2002), aff'd,348 F.3d 1060 (D.C.Cir.2003).

B. Legal Standard for Judicial Review of an ABCMR Decision Under the APA

Under the APA, an agency action may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review of agency actions under the “arbitrary and capricious” standard is “highly deferential” and “presumes the agency's action to be valid.” Envt'l. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981). In assessing an agency decision, a court reviews whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotation marks and citation omitted). “The scope of the Court's review under this standard ‘is narrow and a court is not to substitute its judgment for that of the agency.’ ” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “[A] reviewing court may not set aside an agency [decision] that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute,” so long as the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Id. at 42–43, 103 S.Ct. 2856 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). Indeed, nothing more than a “brief statement” is necessary, as long as the agency explains “why it chose to do what it did.” Tourus Records, Inc. v. Drug, 259 F.3d 731, 737 (D.C.Cir.2001). If the court can “reasonably discern[ ]” the agency's path, it will uphold the agency's decision. Pub. Citizen, Inc. v. F.A.A., 988 F.2d 186, 197 (D.C.Cir.1993) (citing Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)).

Moreover, while judicial review of an agency's actions is generally narrow and subject to a presumption of validity, review of the Board's decisions in particular under the APA is “unusually deferential.” SeePiersall v. Winter, 435 F.3d 319, 324 (D.C.Cir.2006) (citing Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989)). Military boards such as the ABCMR are entitled to greater deference than civilian administrative agencies. Callowayv. Brownlee, 366 F.Supp.2d 43, 53 (D.D.C.2005) (citing Kreis v. Air Force, 866 F.2d 1508, 1514–15 (D.C.Cir.1989)). When reviewing a decision of the Board, a court's “inquiry focuses not on whether the Army was ‘substantively correct’ ... but rather on whether the ABCMR's explanations for that choice demonstrate that [a] defendant[ ] ‘permissibly exercised [its] discretion and made a choice that is supported by at least substantial evidence.’ ” Hill v. Geren, 597 F.Supp.2d 23, 29 (D.D.C.2009) (internal citation omitted). A court need only find that the decision of a military review board “minimally contains a rational connection between the facts found and the choice made.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997)(internal quotation marks and citations omitted). ¹

C. The Court Grants the Defendant's Motion for Summary Judgment

The defendant argues that summary judgment should be granted in its favor because the Board's decision was not arbitrary or capricious. Def.'s Mot. at 23. The plaintiff counters that the Board failed to examine the complete record or to address his specific arguments. Pl.'s Mot. at 11. Specifically, the plaintiff contends, the Board did not discuss whether the OER was an aberration after thirty years of purportedly outstanding evaluations, and it did not properly consider Lieutenant Colonel Seetin's revised statements. Id. at 12–13.

The ABCMR is required to “decide cases on the evidence of record,” which means that “[i]t is not an investigative body.” 32 C.F.R. § 581.3....