Gilbert v. Wilson, Civil Action No. 14–1364 (BAH)

• Decision Date: 27 February 2018
• Docket Number: Civil Action No. 14–1364 (BAH)
• Citation: 292 F.Supp.3d 426
• Parties: Harold B. GILBERT, et al., Plaintiffs, v. Heather A. WILSON, Secretary of the Air Force, Defendant.
• Court: U.S. District Court — District of Columbia

292 F.Supp.3d 426

Harold B. GILBERT, et al., Plaintiffs,

v.Heather A. WILSON, Secretary of the Air Force, Defendant.

Civil Action No. 14–1364 (BAH)

United States District Court, District of Columbia.

Signed February 27, 2018

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

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

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiffs, eleven former Air Force officers who retired or separated from active duty between 1990 and 1998 (collectively, "the plaintiffs"), seek judicial review of the denial of their applications for retrospective promotion by the Air Force Board for Correction of Military Records ("AFBCMR" or "the Board"). The Board determined that each application was submitted well after the applicable three-year limitations period, declined to waive that limitations period, and dismissed the plaintiffs' applications as untimely. The plaintiffs then initiated this lawsuit against the Secretary of the Air Force, seeking a declaratory judgment that the Board's decision not to waive the applicable limitations period was in error.¹ After this Court held that the Board's decision not to waive the limitations period is subject to judicial review, Gilbert v. James ("Gilbert I "), 134 F.Supp.3d 42, 58 (D.D.C. 2015), the case was stayed to allow the Board to conduct de novo reconsideration of the plaintiffs' claims, Gilbert v. James ("Gilbert II "), No. 14-cv-1364, 2016 WL 10721864, *3 (D.D.C. Jan. 4, 2016). The Board again denied the plaintiffs' applications as untimely, and the parties filed cross-motions for summary judgment. Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 37; Pls.' Cross–Mot. Summ. J. ("Pls.' Mot."), ECF No. 38. For the reasons set out below, the Board's decision was neither arbitrary nor capricious and, accordingly, the defendant's motion is granted while the plaintiffs' motion is denied.

I. BACKGROUND

The statutory framework and legislative history of the relevant statutes are laid out fully in this Court's previous Memorandum Opinion on the defendant's motion to dismiss. See Gilbert I , 134 F.Supp.3d at 43–46. The salient points of that discussion are repeated here.

A. Statutory Framework

The Secretary of the Air Force ("the Secretary") is authorized to convene promotion selection boards to recommend active-duty officers for promotion. See 10 U.S.C. § 611. Following an initial promotion decision, the Secretary is empowered to modify retrospectively a current or former service member's military record when necessary "to correct an error or remove an injustice," id. § 1552(a)(1), and is authorized to establish procedures governing such corrections, id. § 1552(a)(3)(A). See also Air Force Instruction ("AFI") 36–2603, Air Force Board for Correction of Military Records , ¶¶ 1–2 (Mar. 5, 2012). Under these procedures, an officer seeking modification of his or her military record 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 (Nov. 8, 2016). Generally, such applications must be filed "within three years after discovering 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; id. ¶ A2.4. To review these applications, the Secretary is authorized, under 10 U.S.C. § 628, to convene Special Selection Boards ("SSBs"). SSBs consider petitioning officers' records, together with "a sampling of the records of those officers of the same competitive category," and make determinations 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).

In 2001, Congress amended 10 U.S.C. § 628 to provide for judicial review of the Secretary's decisions to convene, or decline to convene, SSBs and authorized the services to promulgate regulations addressing, inter alia , any "time limits applicable to the filing of an application for [consideration by an SSB]." National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107–107, § 503, 115 Stat. 1012, 1084 (2001); see also 10 U.S.C. § 628(g) – (j). Pursuant to this newly granted authority, the Air Force promulgated an administrative limitations period that parallels the statutory limitations period found in 10 U.S.C. § 1552(b). Under these regulations, applications for record corrections must be submitted to the Board "within 3 years after the error or injustice [giving rise to the application] 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.

B. The Plaintiffs' Claims

While serving on active duty in the Air Force 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. Supp. Mot. Dismiss Pls.' Am. Compl. ("Def.'s Mem. Mot. Dismiss") at 3, ECF No. 13. In particular, the Air Force provided personnel boards with a Memorandum of Instruction ("MOI") that included language directing the boards to be sensitive to race and gender when evaluating officers. Id. ; Am. Compl. ¶¶ 27–28.²

In 2002, the Federal Circuit held that the Air Force's use of this MOI to help guide the selection of officers for involuntary termination pursuant to a 1993 reduction-in-force mandate constituted a racial and gender classification subject to heightened scrutiny under the equal protection guarantee of the Fifth Amendment. Berkley v. United States , 287 F.3d 1076, 1091 (Fed. Cir. 2002).³ 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; see also Ricks v. United States , 65 Fed.Cl. 826, 831 n.6 (2005) (noting that "[t]he Government does not oppose the entry of a finding by this Court that the instructions were unlawful for those reasons stated in Berkley ") (internal quotation marks, citation, and alteration omitted). Following Berkley , many current and former service members sought reevaluation of their military records without the equal opportunity MOI. See generally, e.g., Christian v. United States , 337 F.3d 1338 (Fed. Cir. 2003) (Army selective early retirement board); Baker v. United States , 127 F.3d 1081 (Fed. Cir. 1997) (Air Force selective early retirement board); Paylor v. Winter , 600 F.Supp.2d 117 (D.D.C. 2009) (Navy promotion selection board); Ricks , 65 Fed.Cl. 826 (Air Force promotion selection board); Christensen v. United States , 65 Fed.Cl. 625 (2005) (Air Force selective early retirement board); Alvin v. United States , 50 Fed.Cl. 295 (2001) (Air Force selective early retirement board).

For a number of years following Berkley , the Board routinely exercised its statutory and regulatory authority to waive the applicable three-year limitations period and regularly convened SSBs to review untimely applications submitted by officers who had been considered by promotion boards operating under the equal opportunity MOI. Am. Compl. ¶¶ 37–38; Def.'s Mem. Mot. Dismiss at 6. At the end of 2011, however, the Board changed course and consistently declined to waive the three-year limitations period when the sole basis for relief asserted by the petitioner was the Air Force's use of the MOI. Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem.") at 2–3, ECF No. 37; Am. Compl. ¶ 41 ("It appears from the records that up to November 28, 2011 all Berkley cases were granted by the AFBCMR. After that date all Berkley cases were denied.") (emphasis in original). Taking into account the passage of nearly a decade since Berkley , and citing its efforts to manage its caseload in conformity with statutory time constraints, the Board concluded that continued waivers of the limitations period for Berkley cases were no longer "in the interest of justice." Administrative Record ("AR") at 15, ECF No. 36–2.⁴

Between May 2011 and December 2012, nearly ten years after Berkley and more than a decade after each plaintiff had separated from the Air Force, each plaintiff filed a DD Form 149 "asking for a correction of their military record because of their unconstitutional treatment in promotion selection." Am. Compl. ¶ 34. Each plaintiff requested, pursuant to § 628(b), referral of his record-correction request to an SSB so that the SSB could reassess his qualifications for promotion and consider him for retrospective promotion without regard to his race and gender. Id. ¶¶ 33–35; AR at 18, 85, 157, 233, 303, 376, 449, 516, 583, 654, 723.

The Board denied each plaintiff's request as untimely. See AR at 16, 82, 153, 230, 300, 374, 446, 514, 581, 651, 721. While conceding that the plaintiffs were considered by promotion selection boards operating under the equal opportunity MOI, Am. Compl. ¶ 36, the Board declined to waive the statutory limitations period, citing the Board's responsibility to manage its caseload under statutory time constraints, its determination that the plaintiffs failed to engage in due diligence in pursuing their applications, and its conclusion that the plaintiffs' significant delay in filing their applications rendered...