Kreis v. Secretary of Air Force

• Citation: 406 F.3d 684
• Decision Date: 06 May 2005
• Docket Number: No. 04-5197.,04-5197.
• Parties: John F. KREIS, Appellant v. SECRETARY OF THE AIR FORCE, In his official capacity, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 684

406 F.3d 684

John F. KREIS, Appellant v. SECRETARY OF THE AIR FORCE, In his official capacity, Appellee

No. 04-5197.

United States Court of Appeals, District of Columbia Circuit.

Argued April 5, 2005.

Decided May 6, 2005.

Appeal from the United States District Court for the District of Columbia (No. 02cv02317).

Daniel M. Schember argued the cause and filed the briefs for appellant.

Charlotte A. Abel, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence Assistant U.S. Attorney, entered an appearance.

Before: EDWARDS, ROGERS and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

This appeal stems from Air Force Major (now retired) John F. Kreis's continuing efforts to obtain a correction of his military records and retroactive promotion by the Air Force Board for the Correction of Military Records ("the Board"). Following a remand, Kreis v. Sec'y of the Air Force, 866 F.2d 1508 (D.C.Cir.1989) ("Kreis I"), the Board found on April 6, 1992 that there was insufficient evidence to demonstrate the existence of possible error or injustice warranting favorable action on Kreis's requests. The district court affirmed, Kreis v. Sec'y of the Air Force, No. 85-1169 (June 3, 1994), aff'd, 1995 WL 225193, 1995 U.S.App. LEXIS 8737 (D.C.Cir. March 8, 1995) ("Kreis II") (unpublished order), declining to consider three declarations that had not been presented to the Board. Id. The Board subsequently denied Kreis's motion for reconsideration to which he attached the three declarations and supplemental statements, and the district court affirmed. Kreis now contends that the Board was arbitrary and capricious when it denied reconsideration without considering his evidence because it failed to follow its regulation on reconsideration and its precedent. On de novo review of the grant of summary judgment to the Board, see Kidwell v. Dep't of the Army, Bd. for Corr. of Military Records, 56 F.3d 279, 286 (D.C.Cir.1995), we reverse and remand the case to the district court with instructions to remand to the Board for consideration of Kreis's motion for reconsideration on the merits.

I.

The background to this appeal is set forth in Kreis I, 866 F.2d at 1509-11, and Kreis v. Sec'y of the Air Force, 648 F.Supp. 383 (D.D.C.1986). The only issue before the court is whether the Board's denial of Kreis's motion for reconsideration was contrary to law under its regulation and precedent. In denying reconsideration the Board stated, in full:

The Board examined your request and concluded that it does not meet the criteria for reconsideration by the Board. Reconsideration is authorized only when newly discovered relevant evidence is presented which was not available when the application was submitted. The reiteration of facts previously addressed by the Board, uncorroborated personal observations, or additional arguments on the evidence of record are not adequate grounds for reopening a case.

(emphasis added) Whether the Board properly refused to consider the documents submitted by Kreis for failure to meet the criteria for reconsideration is governed by the Board regulation on reconsideration, which provides, in relevant part:

Requests for reconsideration shall provide newly discovered relevant evidence not reasonably available to the applicant at the time of a previous application. All requests ... will be initially screened by the staff of the Board .... * * * If such [new] factual allegations, or documentary evidence have been submitted, the request shall be forwarded to the Board for a determination [whether to authorize a hearing, recommend that the records be corrected without a hearing, or to deny the application without a hearing].

32 C.F.R. § 865.9(c) (1994). Kreis sued the Secretary, alleging that the Board's refusal to reconsider his application was arbitrary and capricious, and the district court granted summary judgment to the Board, ruling that the decision of the Board is supported by the evidence.

II.

As the court stated in Kreis I, while the district court's jurisdiction does not reach military personnel decisions, the court has jurisdiction "to evaluate, in light of familiar principles of administrative law, the reasonableness of the Secretary's decision not to take certain corrective action with respect to [Kreis's military] record." 866 F.2d at 1511. The court need only "determine whether the Secretary's decision making process was deficient, not whether his decision was correct." Id. So too the Board's denial of Kreis's motion for reconsideration is subject to review under such principles of administrative law. See id. at 1512-13. Thus, the court must uphold the Board's decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2000). The court, therefore, must be able to conclude that the Board "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). "An agency's discretionary order [will] be upheld, if at all, on the same basis articulated in the order by the agency itself." Burlington Truck Lines, 371 U.S. at 168-69, 83 S.Ct. 239. While the Secretary contends that even greater deference is required here because military personnel decisions are entitled to an "unusually deferential" standard of review, Kreis I, 866 F.2d at 1513-14, the issue before the court does not involve a military judgment requiring military expertise, but rather review of the Board's application of a procedural regulation governing its case adjudication process. Upon de novo review of the district court's grant of summary judgment to the Board, Kidwell, 56 F.3d at 286, we conclude that a remand to the Board is required for the following reasons.

First, the only fair reading of the Board's decision is that, in the Board's view, the evidence submitted by Kreis did not provide adequate grounds for the Board to reach the merits of his request for reconsideration. The Board stated: "The Board examined your request and concluded that it does not meet the criteria for reconsideration by the Board." Admin. Rec. at 123. Neither has the Secretary argued on appeal that the Board considered the merits of Kreis's request. Thus, the Board denied Kreis's motion at the threshold level by deciding that the documents he submitted did not warrant Board consideration of the underlying merits of his request for reconsideration. This conclusion is bolstered by a staff recommendation to the Board that "only addressed the arguments of [Kreis] . . . to the extent they relate to the appropriateness of this Board reconsidering its decision." Id. at 105.

In that light, the Board's refusal to consider "uncorroborated" evidence imposed a requirement not present in its regulation and inconsistent with its precedent. The evidence before the Board consisted of three declarations by military officials, an excerpt from a deposition of a fourth military official, and an affidavit by Kreis's counsel regarding statements made by Larry W. Neptune, a former Air Force Personnel officer. According to the affidavit, Neptune stated that a memorandum of Brigadier General William R. Brooksher, Air Force chief of security police, which had been destroyed, directed that Kreis should not be assigned to a command position or to any other position of responsibility in the security police field. The Board's reference to "uncorroborated personal observations" can only be a reference to the Neptune statements. While the uncorroborated nature of the evidence might appropriately weigh in the Board's assessment of its probative weight, the Board's order denying reconsideration, fairly read, was...