Reilly v. Sec'y of Navy

Decision Date29 January 2014
Docket NumberCivil Action No. 11-cv-0544 (KBJ)
PartiesRICHARD J. REILLY, Plaintiff, v. SECRETARY OF THE NAVY, et al., Defendants.
CourtU.S. District Court — District of Columbia

Plaintiff Richard J. Reilly ("Reilly"), a former Captain in the Marine Corps Reserves ("MCR"), filed the Amended Complaint (ECF No. 6) ("Am. Compl.") in the instant case on January 30, 2012, naming as defendants the Secretary of the Navy, the Board for Correction of Naval Records ("BCNR"), and the United States (collectively, "Defendants"). Reilly's claims stem from his twice being denied promotions to the rank of Major within the MCR. Reilly alleges that he was denied promotion and subsequently discharged from the MCR because of a clerical error in the approval process for his first application for promotion—an error that, according to Reilly, the BCNR wrongly declined to correct. The Amended Complaint contains two counts: "improper discharge" (Count I), and violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 702 (2012) (Count II). The Prayer for Relief in the Amended Complaint requests "constructive service from the time [Reilly] was improperly removed from the promotions list[,]" along with "back pay, allowances, restoration of date of rank and lineal precedence, and any other emoluments" that Reilly would have been entitled to had he not been denied promotion. (Am. Compl. at 7.)

Before the Court now is Defendants' motion to dismiss Reilly's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative, to grant summary judgment in favor of Defendants pursuant to Rule 56. For the reasons set forth below, the Court will GRANT Defendants' motion, dismissing Count I of Reilly's Amended Complaint, and entering summary judgment in Defendants' favor with respect to Count II. A separate order consistent with this opinion will follow.

A. Legal Framework For Military Promotions

Reserve military officers are selected for, and receive, promotions in rank pursuant to parameters that are set forth in a federal statute. See 10 U.S.C. §§ 14101-317 (2012). As with active duty officers, the law dictates that "selection boards" constituted pursuant to 10 U.S.C. § 14101 determine the promotion-eligibility of reserve officers.1 After reviewing all eligible candidates for promotion, the selection board returns to the Secretary of the relevant military department a report listing the names of the officers the selection board recommends for promotion. See 10 U.S.C. §§ 14108, 14109. The Secretary then reviews this report to ensure that it complies with applicable laws and regulations, and subsequently submits the report, along with any additional recommendations, to the Secretary of Defense, for further transmittal to the President for his approval. 10 U.S.C. § 14111. During this process, the Deputy Secretary of Defense, the Secretary of Defense, or the President may remove from the promotion list the names of officers the selection board recommended for promotion.10 U.S.C. § 14111(b). The names of officers who are ultimately selected for promotion are disseminated to the relevant military department at any time after the President approves them. 10 U.S.C. § 14112. However, the President retains the authority to remove the name of any officer from a promotion list at any time before that officer is actually promoted. 10 U.S.C. § 14310(a).

B. The 2003 Promotion Board's Selection Of Reilly And Reilly's Subsequent Removal From The 2003 Major Promotion List

Reilly was commissioned as an officer in the Marine Corps in April of 1993, and remained on active duty until February of 2001, when he resigned his commission and accepted a new commission as a Captain in the MCR. (Am. Compl. ¶ 6.) Subsequently, the Fiscal Year 2003 Reserve Major Promotion Board (the "2003 Promotion Board"), a board that the Secretary of the Navy duly constituted pursuant to 10 U.S.C. § 14101, selected Reilly for promotion to Major. (Id.)2 As a result of this selection, Reilly's name was placed on the 2003 Major Promotion List, and his promotion was scheduled to go into effect on October 1, 2002, once the list received approval from the President. (Administrative Record ("AR") (ECF No. 9) at 11 (Memorandum from Commandant of the Marine Corps to Acting Secretary of the Navy Regarding Captain Richard J. Reilly ("CMC Memo").) However, on September 26, 2002, Reilly was informed that his promotion had been delayed and that the removal of his name from the 2003 Major Promotion List was under consideration. (Id. at 10.)

The delay was due to a Non-Judicial Punishment ("NJP") present in Reilly's military record. Reilly had received the NJP as a result of an incident that had occurredin March of 1998, while Reilly, then on active duty, was stationed in Norway. Reilly went to a bar during a period of "liberty," and became intoxicated. (AR at 10 (CMC Memo).)3 Then, while riding a Marine transport bus back to his base, Reilly grabbed the buttocks and crotch area of a female Marine. (Id.; Am. Compl. ¶ 7.) Reilly was subsequently charged with one count of "behavior unbecoming an officer and a gentleman" pursuant to 10 U.S.C. § 933, and he voluntarily accepted NJP in April of 1998. (AR at 49 (Punitive Letter of Reprimand to Captain Richard J. Reilly).) As a result, Reilly received a letter of reprimand and was required to forfeit $500 in pay for two months, and $250 in pay for two additional months. (Id. at 43 (Report of Nonjudicial Punishment in the Case of Captain Richard J. Reilly).)

On June 9, 2003, while the removal of Reilly's name from the 2003 Major Promotion List was still under consideration, the Acting Commandant of the Marine Corps ("CMC"), Gen. Michael W. Hagee, sent a three-page memorandum to the Secretary of the Navy with the subject line "POSSIBLE REMOVAL FROM THE FY03 MAJOR (USMCR) PROMOTION LIST IN THE CASE OF CAPTAIN RICHARD J. REILLY." (AR at 10-12 (CMC Memo).)4 In the Memorandum, the CMC acknowledged and explained the circumstances of Reilly's NJP. (Id. at 10.) The CMC also noted that Reilly's then-current commanding officers uniformly praised him and that these officers opined that the 1998 NJP incident "is considered an anomaly from anotherwise sustained record of excellence and high standard of conduct." (Id. at 11-12.) Finally, the CMC himself noted his belief that "this single incident was out of character for Captain Reilly and I believe it to be a one-time lapse in judgment. . . . Therefore, I do not believe this incident merits Captain Reilly's removal from the promotion list." (Id. at 12.) This memorandum of endorsement concluded with the CMC's signature, and underneath the CMC's signature on the last page of this memorandum was the phrase "SECNAV DECISION," followed by three additional lines stating "APPROVE," "DISAPPROVE," and "OTHER." Next to each of these words was a blank space for the Secretary of the Navy's signature. (Id.)

On February 17, 2004, the Secretary of the Navy disapproved the CMC's promotion recommendation by initialing and dating the "DISAPPROVE" line at the end of the CMC's memorandum. (AR at 12 (CMC Memo).) The Deputy Secretary of Defense, Paul Wolfowitz, then wrote a separate memorandum to President George W. Bush on behalf of the Secretary of Defense on May 31, 2004, requesting that Reilly's name be removed from the 2003 Major Promotion List. (AR at 13 (Memorandum from Deputy Secretary of Defense to President ("Wolfowitz Memo")).) In the memorandum, the Deputy Secretary of Defense specifically noted that he was recommending Reilly's removal from the 2003 Major Promotion List because "[a]fter reviewing Captain Reilly's response and the evidence contained in the investigative report, the Commandant of the Marine Corps states that he has lost trust and confidence in thisofficer's ability to assume positions of greater responsibility." (Id.)5 The President removed Reilly's name from the 2003 Major Promotion List on June 21, 2004. (Id.)

C. The 2006 Promotion Board's Denial Of Reilly's Promotion Application

Reilly was once again eligible for promotion to Major via the Fiscal Year 2006 Major Promotion Board (the "2006 Promotion Board"). (Am. Compl. ¶ 10.)6 The 2006 Promotion Board denied Reilly's application on April 29, 2005. (AR at 220 (Memorandum from CMC to Reilly Regarding Mandatory Separation), ¶ 3.) Reilly's second failure to be selected for promotion required his mandatory separation from the MCR pursuant to 10 U.S.C. § 14505.7 Accordingly, Reilly's separation from the MCR was set for November 1, 2005. (Id.)

D. Reilly's Petition To The BCNR

On June 8, 2005, while his mandatory separation was pending, Reilly filed a petition with the BCNR seeking to have the records in his personnel file regarding his two failures to achieve promotion to Major "corrected." (AR at 6-9 (BCNR Petition).) The BCNR operates pursuant to 10 U.S.C. § 1552, which grants the Secretary of the Navy the authority to establish procedures for the correction of military records upon request of a claimant. The regulations governing the BCNR provide that

[t]he Board is not an investigative body. Its function is to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary's behalf when authorized.

32 C.F.R. § 723.2(b) (2013). The regulations further provide that an application for correction may be denied if the Board "determines that the evidence of record fails to demonstrate the existence of probable material error" and that, in making this determination, "the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged...

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    ...Piersall v. Winter, 435 F.3d 319, 321–22 (D.C.Cir.2006) (claims for retroactive promotion are nonjusticiable)); Reilly v. Sec'y of the Navy, 12 F.Supp.3d 125, 140 (D.D.C.2014) (merits of an individual military promotion not justiciable); Caez v. United States, 815 F.Supp.2d 184, 188 n.4 (D.......

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