Galvin v. Del Toro

Citation586 F.Supp.3d 1
Decision Date18 February 2022
Docket NumberCivil Action No. 21-1813 (JDB)
Parties Fred C. GALVIN, Plaintiff, v. Carlos DEL TORO, Secretary of the Navy, et al., Defendants.
CourtU.S. District Court — District of Columbia

586 F.Supp.3d 1

Fred C. GALVIN, Plaintiff,
Carlos DEL TORO, Secretary of the Navy, et al., Defendants.

Civil Action No. 21-1813 (JDB)

United States District Court, District of Columbia.

Signed February 18, 2022

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Meredith Leigh Di Liberto, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Michael Fraser Knapp, U.S. Department of Justice, Washington, DC, for Defendants.


JOHN D. BATES, United States District Judge

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Plaintiff Fred C. Galvin had a distinguished career in the Marine Corps, including multiple tours in Iraq and Afghanistan, and he retired in 2014 at the rank of major. See Compl. [ECF No. 1] ¶¶ 3, 8–9, 24–25, 33. Despite being considered for promotion four times, however, Galvin never attained the rank of lieutenant colonel. Id. ¶¶ 27–28, 32–33. He contends that these non-promotions were the result of improper adverse fitness reports included in his service record. Pl.’s Opp'n to Defs.’ Partial Mot. to Dismiss [ECF No. 14] ("Pl.’s Opp'n") at 1. But although his record was eventually corrected and a special selection board ("SSB") was convened to consider Galvin for retroactive promotion, Compl. ¶¶ 36–40, he still was not promoted to lieutenant colonel, id. ¶ 49. Alleging that the SSB did not provide any reasoning and that its decision was otherwise arbitrary or capricious, Galvin now challenges his non-promotion under both the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 06, and 10 U.S.C. § 628(g)(2), which provides for judicial review of SSB decisions. Compl. at 13–14.

The government has moved to dismiss Galvin's APA claim for lack of subject-matter jurisdiction and for failure to state a claim, contending that 10 U.S.C. § 628 prevents Galvin from concurrently seeking relief under the APA. See generally Defs.’ Mem. of P. & A. in Supp. of Defs.’ Partial Mot. to Dismiss [ECF No. 12-1] ("Gov't Mot."). For the reasons set forth below, the Court ultimately agrees with the government: Galvin may not seek relief under both § 628 and the APA. The Court will accordingly grant the government's partial motion to dismiss for failure to state a claim.


I. Statutory Context

The present lawsuit deals with the system by which the United States military promotes its officers and, more particularly, how and when those officers may seek judicial review of promotion decisions. In general, promotions are handled by "selection boards," also called "promotion boards," e.g., 10 U.S.C. § 628(k), which are subject to detailed requirements set forth in Chapter 36 of Title 10 of the U.S. Code. See id. §§ 611–18. But sometimes the promotion board process goes awry, and the law accounts for this possibility. If the Secretary of the relevant military department determines that an officer was not considered by a promotion board due to "administrative error," or that "there was material unfairness with respect to" a candidate "who was considered ... by a promotion board but was not selected," then the Secretary "may convene a special selection board ... to determine whether that person ... should be recommended for promotion." Id. § 628(a)(1), (b)(1). In some cases, as here, the Secretary will convene a special selection board when an officer's record is corrected to remedy a defect that may have affected a promotion board's decision. See id. § 628(b)(2).

Once convened, the SSB "consider[s] the record of the person ... as that record, if corrected, would have appeared to the [promotion] board that considered him" and then "compar[es] [it] with the records of a sampling of those officers of the same competitive category who were recommended for promotion, and those officers who were not recommended for promotion, by the board that considered him." 10 U.S.C. § 628(b)(2). The SSB submits a report to the convening Secretary, id. § 628(c), who then forwards the report with any attached comments to the Secretary of Defense for approval, see id.

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§ 618(a), (c) (incorporated by reference by 10 U.S.C. § 628(c)(2) ); Exec. Order No. 12,396, § 1(a), 47 Fed. Reg. 55897, 55897 (Dec. 9, 1982) (vesting the President's authority to approve such reports with the Secretary of Defense).

Section 628 also specifically provides for judicial review of two kinds of decisions relating to SSBs. First, a court "may review a determination by the Secretary ... not to convene a special selection board." 10 U.S.C. § 628(g)(1)(A). If the court sets aside the Secretary's decision, "it shall remand the case to the Secretary concerned, who shall provide for consideration by such a board." Id. § 628(g)(1)(B). Second, § 628(g)(2) provides for review of "the action of a special selection board ... or an action of the Secretary of the military department concerned on the report of such a board." Both categories of decision may be set aside "only if the court finds the determination to be arbitrary or capricious; not based on substantial evidence; a result of material error of fact or material administrative error; or otherwise contrary to law." Id. § 628(g)(1)(A) (cleaned up); see id. § 628(g)(2).

The statute then places two restrictions on review of "claim[s] based to any extent on the failure of a person to be selected for promotion by a promotion board." Id. § 628(h). First, § 628(h)(1) imposes an exhaustion requirement: no court "may ... consider the claim unless the person has first been referred by the Secretary concerned to a special selection board ... and acted upon by that board." Id. § 628(h)(1) ; see also Gilbert v. James, 134 F. Supp. 3d 42, 52–53 (D.D.C. 2015). Paragraph (h)(2) then restricts what relief courts hearing § 628(g) suits may grant: no court "may ... except as provided in subsection (g), grant any relief on the claim." 10 U.S.C. § 628(h)(2).1 Paragraph (h)(2) thus clarifies § 628(g)(1)(B) ’s mandate—that remand is the only relief available in suits under § 628(g)(1) —and it engrafts that limitation onto suits under § 628(g)(2) as well. See Gilbert, 134 F. Supp. 3d at 53 ("[W]here a claimant is considered by an SSB, a reviewing court may, pursuant to § 628(g)(2), set aside any resulting action ... but the relief, again, is limited to remand of the case for reconsideration by an SSB[.]" (emphasis removed) (citing 10 U.S.C. § 628(h)(2) )).

Also relevant here is the APA, which provides that "[a] person suffering legal wrong because of agency action ... is entitled to judicial review thereof." 5 U.S.C. § 702. But the APA's generic cause of action has its limits. The APA does not apply "to the extent that statutes preclude judicial review," 5 U.S.C. § 701(a)(1), nor does it waive the United States's sovereign immunity "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought," id. § 702(2). Finally, only "final agency action[s] for which there is no other adequate remedy in a court are subject to judicial review." Id. § 704. The APA is thus only a fallback cause of action, neither displacing other restrictions on judicial review nor "duplicat[ing] existing procedures for review of agency action." Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988).

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II. Factual Background

The present lawsuit ultimately originates in events that occurred nearly fifteen years ago. In 2007, Galvin deployed to Afghanistan with Marine Special Operations Company Foxtrot, an elite special ops force trained and led by Galvin. Compl. ¶¶ 6–9. On March 4, 2007, Galvin and twenty-nine Marines under his command were ambushed in the Afghan village of Bati Kot. Id. ¶ 10. Shortly after the Marines extricated themselves from the village, however, reports began circulating on the internet stating that, rather than escaping an attack by enemy forces, Galvin and his men had "indiscriminately fired on civilians, killing and wounding many." Id. ¶ 11. Naturally, these reports led to public outcry, an investigation by an Air Force colonel, and specific condemnation by Afghan President Hamid Karzai that spurred large anti-American protests around Afghanistan. Id. ¶ 13–14. Shortly thereafter, Galvin was relieved of his command and expelled from Afghanistan, id. ¶ 17, and in April 2007, he received an "adverse fitness report" that was "highly critical of [Galvin] for the Bati Kot ambush," id. ¶ 19.

In 2008, a Court of Inquiry ("COI") convened to investigate the incident at Bati Kot. Compl. ¶ 20. After three weeks of evidence-gathering, the COI exonerated Galvin and his men, id. ¶ 21, rejecting the conclusions of the earlier investigation and characterizing his redeployment as having been "based, in large part, on unsubstantiated allegations" and "influenced by the high level of command, media, and governmental attention focused on" the Bati Kot incident, id. ¶ 22 (citation omitted). Despite this result, however, the adverse fitness report Galvin had received remained in his service record, and accusations that Galvin's men had massacred civilians continued to appear in major media sources. Id. ¶ 23, 26.

In August 2010, Galvin was considered for promotion to the rank of lieutenant colonel, but the promotion board did not select him, a decision he attributes to the ongoing (false) accusations of misconduct and the 2007 adverse fitness report still in his record. See Compl. ¶ 26–28; Pl.’s Opp'n at 1. Nor was he recommended for promotion in 2011, 2012, or 2013, decisions he contends were further influenced by a second (allegedly improper) adverse fitness report from June 2011. Compl. ¶¶ 31–32; Pl.’s Opp'n at 1. After his fourth non-promotion, Galvin involuntarily retired from the Marine Corps as required by statute.2 Id. ¶ 33.

Since his first non-promotion in 2010, Galvin repeatedly petitioned the Board for the Correction of Naval Records ("BCNR") to expunge the aforementioned adverse fitness reports from his service record.3 Compl. ¶¶ 34–35. On October 30, 2018, the BCNR agreed with Galvin, recommending that the...

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