Haselrig v. U.S.

• Decision Date: 24 June 2003
• Docket Number: No. 02-5179.,02-5179.
• Citation: 333 F.3d 1354
• Parties: Alger E. HASELRIG, Jr., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1354

333 F.3d 1354

Alger E. HASELRIG, Jr., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 02-5179.

United States Court of Appeals, Federal Circuit.

June 24, 2003.

Rehearing Denied August 21, 2003.

Guy J. Ferrante, King & Everhard, P.C., of Springfield, Virginia, argued for Plaintiff-Appellant.

J. Reid Prouty, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for Defendant-Appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; James M. Kinsella, Deputy Director; and P. Christopher Clark, Attorney, Air Force Legal Services Agency, of Arlington, VA.

Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit Judge.

ARCHER, Senior Circuit Judge.

Major Alger E. Haselrig, Jr. (Haselrig) appeals the United States Court of Federal Claims order granting the government's motion for judgment on the administrative record. Haselrig v. United States, 53 Fed Cl. 111 (Fed.Cl. 2002). Specifically, Haselrig asserts that the procedures used by Air Force Special Selection Boards (SSBs) to identify candidates for promotion are contrary to 10 U.S.C. 628(b)(2) because they do not yield a reasonable determination of whether a candidate would have been promoted had his corrected record been before the original selection board. Because we hold that these procedures reflect a permissible construction of 10 U.S.C. 628(b)(2), the Court of Federal Claims judgment is affirmed.

BACKGROUND

Haselrig retired from the Air Force in 1993, after having been twice passed over for promotion to lieutenant colonel. Believing his records before the promotion boards were incorrect, Haselrig applied to the Air Force Board for Correction of Military Records (Correction Board). Ultimately, Haselrigs record was amended to include two definitely promote (DP) recommendations. It was then sent before two SSBs so that Haselrig could be considered for promotion to lieutenant colonel. Both SSBs non-selected Haselrig.

Briefly,¹ an SSB functions by comparing an officer's corrected record with "benchmark records" of officers from the same year and competitive category who were selected and non-selected for promotion by the original selection board to determine whether the officer would have been recommended for promotion by the original board, but for the uncorrected records. AFI 36-2501 ¶ 6.5.2. The SSB re-scores the corrected record and ten benchmark records, representing the five highest rated officers non-selected for promotion and the five lowest rated officers selected for promotion, without knowing which record is actually the one being reconsidered. AFI 36-2501 ¶ 3.3. Once the SSB scores the records, it is revealed which record was the one being reconsidered and which ones were the benchmark records. The SSB will recommend the reconsidered candidate for retroactive promotion if his record scores higher than all the records of the non-selected benchmarks and ties at least one of the records of the selected benchmarks. AFI 36-2501 ¶ 6.5.4.

Following his non-selection by the SSBs and the Correction Boards denial of further relief, Haselrig filed suit in the Court of Federal Claims, which granted the governments motion for judgment on the administrative record. Haselrig now appeals.

We have jurisdiction under 28 U.S.C. § 1295(a)(3).

ANALYSIS

We review legal determinations of the Court of Federal Claims, such as a judgment on the administrative record, de novo. See Heisig v. United States, 719 F.2d 1153, 1158 (Fed.Cir.1983). This means we apply the same standard of review the trial court did. Accordingly, in this case we will not disturb the Correction Board's decision to uphold the SSBs' non-selection of Haselrig unless the Correction Board, in adopting the SSBs' promotion decisions, acted in a manner that is arbitrary, capricious, contrary to law, or unsupported by substantial evidence. See Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.1986).

Haselrig asserts the SSB procedures, as conducted, constituted an impermissible interpretation of the applicable statutory and regulatory provisions. As such, he contends the Correction Board acted improperly by accepting the SSBs' decisions. Thus, we must examine whether the Air Force's SSB procedures, as conducted, are permissible.

10 U.S.C. § 628 is the statute that governs SSBs. It states in relevant part:

A special selection board convened ... shall consider the record of the person whose name was referred to it for consideration as that record, if corrected, would have appeared to the board that considered him. That record shall be compared 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) (2000).

This court has previously been called upon to interpret 10 U.S.C. § 628(b)(2). See Porter v. United States, 163 F.3d 1304 (Fed.Cir.1998). Following the minimal guidance provided by Congress, we explained that in order for an SSB to perform lawfully, it must yield a reasonable determination as to whether the officer would have been selected if his pertinent records had been properly considered by the prior board, unfettered by material error. See id. at 1324 (citing H.R.Rep. No. 96-1462, Defense Officer Personnel Management Act, 96th Cong., 2d Sess. 74 (1980) (stating "the purpose of this subsection [10 U.S.C. § 628(b) ] is 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 board, unfettered by material error")). Thus we must determine whether the Air Force's procedures governing SSBs yield such a reasonable determination.

In carrying out the mandate of 10 U.S.C. § 628(b)(2), the Air Force requires that an SSB "[c]onsider the records of officers as they would have appeared to the original board had the officers been properly considered" and that it "[c]ompare the officers' records with benchmark records from the original boards," using the same scoring methodology prescribed for the original boards. Air Force Instruction (AFI) 36-2501 ¶¶ 6.5.2, 6.5.3. This is accomplished by taking the five highest scoring non-selected records, the five lowest scoring selected records, and the record being reconsidered and re-scoring all eleven records by a single SSB. AFI 36-2501 ¶ 3.3. The record being reconsidered is recommended for retroactive promotion if it scores above all five of the previously non-selected records and at...