Villarreal-Dancy v. U.S. Dep't of Air Force
| Decision Date | 26 July 2021 |
| Docket Number | Civil Action No. 19-2985 (RDM) |
| Parties | IDALIA VILLARREAL-DANCY, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Idalia Villarreal-Dancy served more than ten years in the Air Force. During her time in the military, she amassed an impressive record, receiving numerous medals and other awards. In 2000, however, Plaintiff failed a drug test and, following a military trial, was given a punitive Bad Conduct Discharge. Thereafter, Plaintiff rebuilt her civilian life—earning an associate degree, raising three children, and volunteering in her community. But her discharge was still "an open wound." Dkt. 29-1 at 77. So, in 2015, Plaintiff asked the Air Force to upgrade her discharge classification to honorable, in part based on her "successful post-service transition." Id. at 3.
Federal law permits "[t]he Secretary of a military department [to] correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). Such corrections must "be made by the Secretary acting through boards of civilians." Id. In Plaintiff's case, the Air Force Board for Correction of Military Records (the "Board") concluded that Plaintiff's discharge should be upgraded, based on her "honorable character and notable achievements" since leaving the military. Dkt. 29-1 at 12. But the Acting Assistant Secretary of the Air Force for Manpower and Reserve Affairs, acting on behalf of the Secretary, overruled the Board and denied Plaintiff's application. Id. at 3.
Plaintiff filed this lawsuit against the U.S. Department of the Air Force, the Secretary of the Air Force, and the Assistant Secretary of the Air Force for Manpower and Reserve Affairs1 (collectively, "Defendants") to challenge the denial of her application under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Plaintiff argues that the Acting Assistant Secretary lacked authority, under the governing statute and regulations, to reverse the Board's decision. The Court concludes that the statute gives the Secretary (or his statutorily authorized delegee) the power to overrule the Board. But the parties' arguments on the regulatory question all miss the mark, and the Court cannot determine from the present record whether the Acting Assistant Secretary had authority—under the relevant regulations and overlapping delegations—to exercise the Secretary's statutory power to review the Board's decision.
The Court will thus DENY Plaintiff's motion for summary judgment, Dkt. 21. That denial will be with prejudice on the statutory question but otherwise without prejudice. The Court will GRANT in part and DENY in part Defendants' cross-motion for summary judgment, Dkt. 23. The motion will be granted on the statutory question but otherwise denied without prejudice. The Court will DENY without prejudice Plaintiff's motion to correct the administrative record, Dkt. 30, which is premature. Finally, the Court will permit the parties to renew their respective motions, focusing on the questions outlined below.
For much of the nation's history, servicemembers seeking to have their military records corrected "were forced to seek private bills in Congress." Schwalier v. Panetta, 839 F. Supp. 2d 75, 82 (D.D.C. 2012), aff'd sub nom. Schwalier v. Hagel, 776 F.3d 832 (Fed. Cir. 2015). Following World War II, Congress faced a "great number of private bills . . . at each session requesting changes in servicemembers' records," Detweiler v. Pena, 38 F.3d 591, 597 n.5 (D.C. Cir. 1994) (internal quotation marks and citation omitted), and legislators sought to "relieve [themselves] of the burden of considering private bills to correct alleged errors and injustices in the military system," Strand v. United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020) (internal quotation marks and citation omitted); see also 41 U.S. Op. Atty. Gen. 71 (1951). Through the Legislative Reorganization Act of 1946, Congress created an administrative process for the secretaries of the military departments, acting through "boards of civilian officers or employees," to correct military records. Pub. L. No. 79-601, § 207, 60 Stat. 812, 837 (1946). "Concerned that service members returning to civilian life after World War II might be handicapped by bad military records created without due process in the hurly-burly of the war, and that career military officials would not be much interested in effecting corrections, Congress required the service secretaries to act through boards of civilians." Strand, 951 F.3d at 1351 (internal quotation marks and citation omitted).
In its current form, the statute provides that "[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). With a limited exception for certain "favorable" corrections not relevant here, id. § 1552(a)(2), "suchcorrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department." Id. § 1552(a)(1). Such boards operate "under procedures established by the Secretary" of the relevant military Department. Id. § 1552(a)(3)(A). Either a claimant or the relevant Secretary may file a request for correction with the Board. Id. § 1552(b).
The Air Force has promulgated regulations establishing the Board and "defin[ing] the Board's authority to act on applications." 32 C.F.R. § 865.0. The Board's membership consists of "civilians in the executive part of the Department of the Air Force who are appointed and serve at the pleasure of the Secretary of the Air Force." Id. § 865.1. The Board sits in panels of at least three members to consider each application, with one member serving as the panel chair. Id. § 865.4(c). "The panel's majority vote constitutes the action of the Board." Id. § 865.4(h).
Under the regulations, the Board's decision represents the agency's final action in certain circumstances, while other Board decisions are reviewed by the Secretary. Id. § 865.4(l). "The Board acts for the Secretary of the Air Force and its decision is final when" the Board "[d]enies any application," other than an application related to whistleblower retaliation. Id. § 865.4(l)(1). The Board also acts for the Secretary in rendering a final decision when it "[g]rants any application in whole or in part" if the relief granted (1) "was recommended by the official preparing the advisory opinion;" (2) "was unanimously agreed to by the panel;" (3) "does not affect an appointment or promotion requiring confirmation by the Senate;" and (4) "does not affect a matter for which the Secretary of the Air Force or his or her delegee has withheld decision authority or required notification before final decision." Id. § 865.4(l)(2). As to "all other applications," the Board instead "sends the record of proceedings . . . to the Secretary of the Air Force or his or her designee for final decision." Id. § 865.4(l)(3). When the Secretaryreviews a case, he or she "may direct such action as he or she deems appropriate . . . , including returning the case to the Board for further consideration." Id. § 865.5(a). "If the Secretary does not accept the Board's recommendation, the Secretary's decision will be in writing and will include a brief statement of the grounds for his/her final decision." Id.
More broadly, the Secretary of the Air Force "is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Air Force." 10 U.S.C. § 9013(b). And the Secretary "may assign such of his functions, powers, and duties as he considers appropriate to the Under Secretary of the Air Force and to the Assistant Secretaries of the Air Force." 10 U.S.C. § 9013(f). The Secretary has delegated his authority to review Board decisions, including some decisions that 32 C.F.R. § 865.4(l) treats as "final," to his subordinates. Specifically, in Headquarters Air Force Mission Directive 1-24, as amended on May 25, 2012, the Secretary delegated to the Assistant Secretary of the Air Force for Manpower and Reserve Affairs authority to make a final decision on all Board decisions, except those related to confidential information or security clearances or related to other matters "with respect to which the Secretary of the Air Force has reserved final decision authority." Dkt. 23 at 18.2 The Directive also prohibits the Assistant Secretary from further delegating the authority "to deny an application for correction of military records when correction has been recommended by unanimous or majority vote of a panel of the Board." Id. at 18-19. In 2017, because of a vacancy in the Assistant Secretary position, the Acting Secretary of the Air Force at the time, Lisa S. Disbrow, issued amemorandum that "temporarily delegated to the Principal Deputy Assistant Secretary of the Air Force for Manpower and Reserve Affairs . . . [a]uthority to make a final decision on all applications to the" Board under § 1552, with the same exceptions as in Headquarters Air Force Mission Directive 1-24. Dkt. 29-1 at 7. The delegation memorandum explained that the temporary delegation "includes authority to grant or deny an application when the opposite action has been recommended by a unanimous vote of a panel of the Board for Correction of Military Records." Id.
Plaintiff joined the Air Force on November 16, 1988, and served more than ten years. Dkt. 29-1 at 8. During that time, she traversed the globe, usually serving as a recreation specialist on various air bases. She assisted Kurdish refugees as part of Operation Pacific Haven while stationed at Anderson Air Force Base in Guam, id. at 57, and provided support to Operation...
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