Frizelle v. Slater
| Decision Date | 25 April 1997 |
| Docket Number | No. 95-5248,95-5248 |
| Citation | 324 U.S. App. D.C. 130,111 F.3d 172 |
| Parties | Michael K. FRIZELLE, Appellant v. Rodney E. SLATER, Secretary of Transportation, Appellee |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 93cv00905).
Eugene R. Fidell, Washington, DC, argued the cause and filed the briefs, for appellant.
Michael J. Ryan, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and Paul S. Smith, Senior Trial Attorney, U.S. Department of Transportation, were on the brief for the appellee. Michael T. Ambrosino, Assistant U.S. Attorney, entered an appearance.
James J. Kelley, Washington, DC, was on the brief for amicus curiae National Veterans Legal Services Program.
Before: WALD, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Michael Frizelle petitioned the district court for review of a decision of the Secretary of Transportation, acting through the Coast Guard Board of Correction of Military Records. He challenged the Board's failure to delete several disparaging comments in an Officer Evaluation Report ("OER") that he received early in his career as a Coast Guard officer, and its decision not to delete from his record the fact that he had twice been passed over for promotion to lieutenant, resulting in his discharge. The district court granted summary judgment for the Secretary. Because the Board failed to address two of Frizelle's arguments that are not facially frivolous, we reverse and remand.
Frizelle joined the Coast Guard Reserve in 1985, after serving nearly eight years as an enlisted man in the United States Air Force. He was selected for training as an officer in 1986, and commissioned as an ensign in February, 1987. He was stationed at the Coast Guard's Eighth District Office in New Orleans, where he ultimately served as assistant chief of the Reserve Programs Section. In that capacity, he was responsible for many of the office's computer systems, as well as a "grab bag" of special assignments.
On his first OER, Frizelle received generally strong marks from his supervisor and from the Chief of the Reserve Branch, who described him as "[a] very competent ensign and well qualified for promotion with his peers." Frizelle's second OER, covering the period from October 1, 1987 to March 3, 1988, was markedly different in tone. Although his supervisor and the chief made several positive comments, they also made several disparaging comments, including the following:
His performance has been good in some areas but lacked effort in others.... Areas where performance has been less than expected are: system efforts were plagued by much down-time, confusion and many lingering problems due to his not delving sufficiently into system publications in an effort to learn and head off problems; often lead [sic] by problems rather than taking charge and leading the system; has had difficulty assessing areas of responsibility and establishing clear goals and objectives; has not kept supervisor adequately informed regarding status of ongoing projects; does not possess rudimentary familiarity with publications necessary to conduct research and develop definitive answers; has not demonstrated the ability to take charge of projects from inception to completion; has not managed to effectively monitor and complete many assigned projects....
One problem area that has had an impact on the Branch has been his difficulty fostering a cooperative working relationship with personnel from other sections within the Branch who are dependent on him for systems support. This situation has necessitated his Supervisor's involvement in routine situations that should have been handled at a lower level. Contributing to this problem is the fact that he has not kept appropriate interests apprised of changing situations; this has caused numerous misunderstandings and ill feelings between sections....
Frizelle has been tasked with many well-defined responsibilities this evaluation period and has not consistently produced the desired results. Performance due in part to the technical nature of his computer system related work; but part is also due to his inability to master the time management and interpersonal communications requirements of a staff position. He was counseled midway through this reporting period regarding his specific responsibilities, his performance, projects he was expected to accomplish, and aspects of his performance that needed attention....
Works hard to achieve objectives; frequently misses them.... [M]isses deadlines due to unanticipated delays and unrealistic promises. Flawed computer equipment and software installations repeatedly caused us to lose the capability to access the mainframe. System down time was extensive but is improving. Much time spent pursuing air shipment of 32' [ports and waterways boat] only to find prohibitive cost factor ignored. Missed letter deadline responding to [Commandant] query....
The OERs required Frizelle's supervisor and the Chief of the Reserve Branch to evaluate Frizelle on a numerical scale from one to seven in a variety of categories. His numerical marks were also somewhat lower in several categories on the second OER than they had been on the first.
Frizelle's third OER contained no similar comments, and indicated that he had made "marked" improvements. Shortly after the end of that period, he left the Eighth District Office and began flight school. At approximately that time, he was promoted from ensign to lieutenant (junior grade). He subsequently served as a helicopter co-pilot in Coast Guard search and rescue operations. In that capacity, he received a Coast Guard award for courage and skill while participating in a lengthy offshore lifesaving mission. In both 1990 and 1991, however, Frizelle was passed over for promotion to lieutenant. By statute, any officer of the Regular Coast Guard serving as a lieutenant (junior grade) who is passed over for promotion to lieutenant twice must be honorably discharged or, if eligible, retired. 14 U.S.C. § 282 (1994). Accordingly, Frizelle filed an application to the Coast Guard Board of Correction of Military Records pursuant to 10 U.S.C. § 1552, asking the Board to delete his second OER, or alternatively to redact it to eliminate several of the critical comments, and to void the two passovers for promotion. While his application was pending before the Board, Frizelle was discharged.
Frizelle challenged the second OER as inaccurate and unjust on several grounds. Among other things, he alleged that the comments relating to his management of the computer system failed to give him credit for significant accomplishments; that the comments describing poor interpersonal skills were the result of manipulation by a malcontent and verbally abusive chief warrant officer who repeatedly went over Frizelle's head to complain to his supervisors; that his superiors were biased against him because of his desire to attend flight school; that the comments relating to the transfer of the boat and the missed deadline were inaccurate and, in any case, occurred outside the reporting period; and that he had not received counseling from his supervisor at the beginning and end of the reporting period as required by the Coast Guard's Personnel Manual. Without addressing these arguments in detail, the Board denied Frizelle's application, finding that he had not established that the Coast Guard had committed any "errors" or "injustices." 10 U.S.C. § 1552. Frizelle thereafter filed a petition for review in the district court.
The district court granted Frizelle's motion for summary judgment and remanded to the Board, finding that it had not adequately explained its reasoning. On remand, the Board concluded that two of Frizelle's contentions had merit. First, it found that the sentence concerning the boat related to a matter from the prior reporting period, and deleted that sentence. Second, it found that the reference to the "mainframe" was inaccurate, since Frizelle's office did not have a mainframe computer, and changed the word "mainframe" to "system." The Board declined to strike the OER in its entirety or to make any other changes. It also concluded that the disputed OER was consistent with Frizelle's other OERs, and that, in light of the relatively minor relief being awarded, it would not void the promotion passovers. On rehearing, the district court granted summary judgment for the Secretary, finding that the Board had adequately explained its decision. This appeal followed.
Under 10 U.S.C. § 1552, the Secretary of Transportation has authority to correct any military record of the Coast Guard when "the Secretary considers it necessary to correct an error or remove an injustice." 1 Except with respect to certain records relating to promotion or enlistment decisions, the Secretary must act through a civilian board. Decisions of the civilian board are subject to review under § 706 of the Administrative Procedures Act, 5 U.S.C. § 706. Dickson v. Secretary of Defense, 68 F.3d 1396, 1404 (D.C.Cir.1995); Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1513-14 (D.C.Cir.1989); see also Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983). On review of a grant of summary judgment, we review the Board's decision de novo, applying the same standards as the district court. Kidwell v. Department of the Army, 56 F.3d 279, 286 (D.C.Cir.1995). Hence, we defer to the Board's decision unless it is arbitrary and capricious, contrary to law, or unsupported by substantial evidence.
Applying this standard, we conclude that many of the challenges Frizelle has raised to the Board's decision are without merit. While the Board...
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