Gilbert v. James

• Decision Date: 22 September 2015
• Docket Number: Civil Action No. 14–1364 (BAH)
• Citation: 134 F.Supp.3d 42
• Parties: Harold B. Gilbert, et al. Plaintiffs, v. Deborah Lee James, Secretary of the Air Force. Defendant.
• Court: U.S. District Court — District of Columbia

134 F.Supp.3d 42

Harold B. Gilbert, et al. Plaintiffs,

v.Deborah Lee James, Secretary of the Air Force. Defendant.

Civil Action No. 14–1364 (BAH)

United States District Court, District of Columbia.

Signed September 22, 2015

Gary R. Myers, Gary Myers & Associates, Weare, NH, for Plaintiffs.

Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL

, United States District Judge

Eleven plaintiffs, all former Air Force officers who retired or separated from active duty before 1998 (collectively, "the plaintiffs"), seek judicial review of the denial of their petitions for retrospective promotion by the Air Force Board of Correction of Military Record ("AFBCMR" or "the Board"). Determining that each petition was submitted well after the three-year statutory limitations period applicable to such requests, the Board declined to waive the limitations period and denied each petition as untimely. The plaintiffs do not dispute either that the three-year limitations period applies to their applications or that they failed to file their applications within the limitations period. Nonetheless, they now bring suit against defendant Deborah Lee James, in her official capacity as Secretary of the Air Force, seeking a declaratory judgment that the Board's decision not to waive the admittedly applicable limitations period was in error. Pending before the Court is the defendant's motion to dismiss the plaintiffs' Amended Complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure

. Def.'s Mem. Supp. Mot. Dismiss ("Def.'s Mem."), ECF No. 13. For the reasons set out below, the defendant's motion to dismiss is granted in part and denied in part.

I. BACKGROUND

Resolution of the pending motion turns on a question of statutory interpretation. Consequently, the Court turns first to review of the relevant statutory and administrative framework, as well as the amendments thereto that are at issue in the pending motion. Then, the Court describes the plaintiffs' claims challenging the defendant's denial of their requests to waive the otherwise applicable limitations period, which resulted in the denial as untimely of their requests to convene special selection boards to reconsider their non-selection for promotion.

A. The Statutory Framework

In order to meet the needs of the service, the Secretary of the Air Force ("the Secretary") is authorized to convene promotion selection boards to recommend active-duty officers for promotion. 10 U.S.C. § 611

. Following an initial promotion decision, the Secretary may retrospectively modify a current or former service member's military record when necessary to "correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). The Secretary is authorized to establish procedures governing such corrections, id. § 1552(a)(3)

, and has empowered the Board to consider petitions submitted by officers seeking to correct their service records, Air Force Instruction ("AFI") 36–2603, Air Force Board for Correction of Military Records, ¶¶ 1–2 (Mar. 5, 2012). Officers seeking a modification to their military record to correct an error or remove an injustice must submit an "Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552," called a DD Form 149, to the Board. See AFI 36–2401, Correcting Officer and Enlisted Evaluation Reports, Table 1, Row 3 (Feb. 20, 2004), ECF No. 16–1; see also AFI 36–2406, Officer and Enlisted Evaluation Systems, Table 10.1, Row 3 (Jan. 2, 2013).¹ Generally, such applications must be filed within three years "after [the claimant] discovers the error or injustice," although the Board "may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice." 10 U.S.C. § 1552(b) ; see also AFI 36–2406 ¶ 10.5.1 (titled "Time Limits," requiring submission of "appeal within 3 years following the date the evaluation became a matter of record" and providing "[i]f the evaluation is more than 3 years old, [the applicant] must submit a waiver of the time limit"); id . ¶ A2.4 (titled "Time Limit Waivers," providing "[t]he applicant can request a waiver of the 3–year time limit by citing unusual circumstances that prevented filing the appeal in a timely manner").

To assist in reviewing certain applications submitted pursuant to 10 U.S.C. § 1552

, the Secretary is authorized under 10 U.S.C. § 628 to convene periodic Special Selection Boards ("SSBs"). An SSB considers petitioning officers' records, together with "a sampling of the records of those officers of the same competitive category," and makes a determination as to whether each petitioning officer should be recommended for a retrospective promotion. 10 U.S.C. §§ 628(a)(2), (b)(2) ; Antonellis v. United States, 723 F.3d 1328, 1334 (Fed.Cir.2013). If the SSB recommends that a petitioning officer receive a promotion and this recommendation is approved by the Secretary and the President, the petitioning officer is retrospectively promoted and he becomes entitled to the pay and allowances that he would have received but for the original, defective promotion board decision. 10 U.S.C. §§ 628(c)(1), (d).

The Secretary is authorized to convene SSBs to review two categories of claims: (1) claims submitted by officers who were not considered by a promotion board due to an administrative error, id. § 628(a)

; and (2) claims submitted by officers who were considered by a promotion board, but whose service records were considered in an unfair manner, id. § 628(b). Most relevant here, in order to convene an SSB pursuant to § 628(b), the Secretary must first determine "that there was ‘material unfairness' " with respect to a petitioning officer who was considered by a selection board but not selected for promotion.² The statute provides guidance as to the considerations relevant to making a determination "that there was material unfairness," stating:

In order to determine that there was material unfairness, the Secretary must determine that—

(A) the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or

(B) the board did not have before it for its consideration material information.

Id. § 628(b)(1); see also AFI 36–2501, Officer Promotions and Selective Continuation, ¶ 6.1 (July 16, 2004). SSBs convened under this subsection are intended to provide "a means to make a reasonable determination as to whether the officer would have been selected if his pertinent records had been properly considered by the prior [promotion selection] board." AFI 36–2501 ¶ 6.5.2; Porter v. United States, 163 F.3d 1304, 1315 (Fed.Cir.1998)

(internal quotation marks and citation omitted).

B. Circumstances Leading to 2001 Amendment to § 628

While serving on active duty between 1990 and 1998, each of the plaintiffs was considered by at least one promotion selection board and not selected for promotion. Am. Compl. ¶¶ 15–25, ECF No. 11. During this period, the military services provided certain equal opportunity instructions to various boards charged with making personnel decisions, including promotions, early retirement and selective retentions. Def.'s Mem. at 3. In particular, the Air Force provided such boards with a Memorandum of Instruction ("MOI") that included language directing the boards to be sensitive to race and gender when selecting officers for promotion. Id. ; Am. Compl. ¶¶ 27–28.³ Plaintiffs contend that this equal opportunity instruction led to "reverse discrimination" resulting in their non-selection for promotion. Am. Compl. ¶¶ 27–28.

In 2002, the Federal Circuit held that the Air Force's use of the MOI to help guide the selection of officers for involuntary termination pursuant to a 1993 Reduction in Force constituted a racial or gender classification subject to heightened scrutiny under the equal protection guarantee of the Fifth Amendment. Berkley v. United States (Berkley I ), 287 F.3d 1076, 1091 (Fed.Cir.2002)

.⁴ Since that time, and relying on Berkley, the Board has opined that the MOI language addressing race and gender considerations was unconstitutional. Am. Compl. ¶¶ 30–31.

Following Berkley,

as well as related litigation challenging the use of similar equal opportunity instructions by the other military services, a significant number of current and former service members sought reevaluation of their military records to obtain a new promotion recommendation unaffected by these instructions. With petitions for SSBs mounting, Congress amended 10 U.S.C. § 628

in 2001 to include new subsections providing for judicial review with respect to the convening of SSBs. See National Defense Authorization Act for FY 2002 ("2002 NDAA"), Pub.L. 107–107, § 503, 115 Stat. 1012 (2001); 10 U.S.C. §§ 628(g) –(i). The 2001 amendments also authorized the services to promulgate regulations addressing, inter alia, any "time limits applicable to the filing of an application for [consideration by an SSB]." 10 U.S.C. § 628(j)(2)(B).

Pursuant to this newly granted authority, the Air Force promulgated an administrative limitations period that parallels the statutory limitations period found at 10 U.S.C. § 1552(b)

. Under these regulations, petitions for correction of military records must be submitted to the Board "within 3 years after the error or injustice [giving rise to the petition] was discovered, or, with due diligence, should have been discovered." AFI 36–2603 ¶ 3.5. "An application filed later is untimely and may be denied by the Board on that basis," id. but the Board "may excuse untimely filing in the interest of justice," id. ¶ 3.5.1.⁵

For a number of years following Berkley,

the Board regularly convened SSBs to review § 1552 petitions submitted by officers who were considered by a promotion board operating under the influence of an equal opportunity MOI. Am. Compl....