United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2006 Decided May 11, 2007
No. 05-5396
DOUGLAS J. MUELLER,
APPELLANT
v.
DONALD C. WINTER,
SECRETARY OF THE NAVY AND
DEPARTMENT OF NAVY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01711)
Guy J. Ferrante argued the cause and filed the briefs for
appellant.
Steven Ranieri, Assistant U.S. Attorney, argued the cause
pro hac vice for appellee. On the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Michael J. Ryan and Kevin K. Robitaille, Assistant U.S.
Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
2
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Lieutenant Commander Douglas
Mueller challenges the Navy’s refusal to remove an assertedly
erroneous fitness report from his personnel record under both
the Privacy Act, 5 U.S.C. § 552a, and the Administrative
Procedure Act, 5 U.S.C. § 706. He also challenges the Navy’s
denial of his request to convene a special selection board under
10 U.S.C. § 628. The district court rejected each of Mueller’s
challenges, as do we.
I
Mueller is a Lieutenant Commander (LCDR) in the U.S.
Navy Judge Advocate General’s Corps. On November 16,
1999, Mueller received a fitness report (the “original fitness
report”) that was prepared by his “reporting senior,” Rear
Admiral (RADM) Donald Weiss. The report covered the period
between November 1, 1998 and October 31, 1999, and is the
principal subject of this appeal.
Fitness reports are prepared by reporting seniors annually
and cover a one-year period for officers of Mueller’s rank. See
Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10
at ¶¶ D-2, D-3. The reports are maintained for all Navy
personnel and are meant to “reflect their fitness for the service
and performance of duties.” Id. at Introduction ¶ 1 (internal
quotation marks omitted). Fitness reports “on officers . . . are
used for many career actions, including selection for promotion,
advanced training, specialization or subspecialization, and
responsible duty assignments.” Id.
3
The Bureau of Naval Personnel has promulgated detailed
instructions directing reporting seniors as to how to prepare
fitness reports. As is relevant to this appeal, blocks 33-39 on the
report form require the reporting senior to rank the officer with
respect to various “Performance Traits” -- for example,
“Professional Expertise” and “Teamwork” -- each on a scale
from 1.0 (“Below Standards”) to 5.0 (“Greatly Exceeds
Standards”), with 3.0 (“Meets Standards”) as the midpoint. See,
e.g., Joint Appendix (J.A.) 39. “For the majority of Navy
people, most of the trait grades should be in the 2.0 to 4.0
range.” BUPERSINST 1610.10 at ¶ A-4. The reporting senior
is also instructed to provide written comments on the officer’s
performance. Finally, the reporting senior must make a
recommendation regarding promotion by checking one of five
boxes, ranging from “Significant Problems” to “Early Promote.”
See id.; J.A. 40.
On the original fitness report, Admiral Weiss gave Mueller
marks of 3.0 (“Meets Standards”) in three categories, marks of
4.0 (“Above Standards”) in another three, and a “Not Observed”
mark in a final category, “Tactical Performance.” J.A. 39-40.
After commenting positively regarding Mueller, Weiss rated
him “Must Promote,” one level short of the highest promotion
recommendation. J.A. 40. Although the report was generally
quite favorable, it painted a somewhat less positive picture of
Mueller than both the report that directly preceded it and the one
that directly followed it.
Seventeen months after Mueller received the original fitness
report, the Fiscal Year 2002 (FY-02) promotion board met. On
April 17, 2001, the board -- which had before it the original
fitness report as well as fitness reports for prior and subsequent
periods -- did not select Mueller for promotion to the rank of
Commander.
4
On January 14, 2002, eight months after the FY-02 board
decided not to promote Mueller and more than two years after
Weiss submitted the original fitness report, Mueller sent Weiss
a letter, asking him for “support in modifying the marks” on the
original fitness report. J.A. 41. Navy regulations allow a
reporting senior to supplement an original fitness report with a
new one. See BUPERSINST 1610.10 at ¶ P-4. Although the
Navy generally will not accept a supplemental report submitted
more than two years after the ending date of the original fitness
report, id., a reporting senior may request, and the Board may
grant, a waiver of the filing deadline, id. at ¶ P-4(c). If a
supplemental report is submitted and accepted, it is stored in the
officer’s record together with the original report, which remains
unchanged unless the Navy alters or removes it as a result of an
appeal. Id. at ¶ P-8(a).
On March 7, 2002, Weiss submitted a supplemental report,
along with a request to waive the two-year filing deadline. The
supplemental report raised three of Mueller’s “Performance
Traits” marks (for “Professional Expertise,” “Mission
Accomplishment and Initiative,” and “Leadership”) from 4.0 to
5.0, and a fourth mark (for “Teamwork”) from 3.0 to 4.0.
Compare J.A. 47-48, with J.A. 39-40; see J.A. 45. It retained
Weiss’ previous “Comments on Performance,” but added the
directive “Promote to Commander now.” It also changed the
promotion recommendation from “Must Promote” to “Early
Promote,” the highest recommendation. Compare J.A. 48, with
J.A. 40. In an accompanying cover letter, Weiss wrote:
On reflection, the marks I assigned on the original
report when compared to the recorded comments on
LCDR Mueller’s performance and my recollection of
the officer’s performance were harsher than required.
Therefore, I wish to change the marks to more
5
accurately represent the performance of the officer . .
..
J.A. 45. The Navy honored Weiss’ request to waive the
deadline and filed Weiss’ supplemental report and cover letter
in Mueller’s personnel record, alongside the original fitness
report.
Mueller next petitioned the Board for Correction of Naval
Records (BCNR) to remove the original fitness report from his
personnel record and to replace it with the supplemental report,
pursuant to the Board’s statutory authority “to correct an error
or remove an injustice.” 10 U.S.C. § 1552(a)(1). Mueller
argued that the original fitness report “did not fairly reflect a
substantially accurate, complete and fair portrayal of [his]
performance during the [covered] period.” J.A. 35. Although
Mueller acknowledged that both the original and supplemental
reports were in his personnel record, he contended that “this
practice leaves a record that a board member could, and
probably would, construe as a flaw in [his] record,” and that the
promotion board “would likely surmise from their own
experience that the change was at [his] request and even if [the
board] did not view [his] prior report, that the prior entry was
negative.” J.A. 37.
On October 18, 2002, the Navy Personnel Command issued
an advisory opinion to the BCNR. The opinion noted that the
Navy “make[s] provisions for the submission of supplementary
material concerning fitness reports so reporting senior[s] may
clarify, amend, or correct a report already on file, not replace
[it]. The reporting senior has submitted and we have accepted
and filed the revised report.” J.A. 49. The opinion also stated
that “the petitioner has requested the replacement of his fitness
report to enhance his opportunities for promotion. We do not
support changes of record to improve [an] officer’s opportunity
6
for promotion or career enhancement.” Id. The opinion
concluded that Mueller did “not prove the [original fitness
report] to be unjust or in error,” id., and recommended that
Mueller’s “record remain unchanged,” J.A. 50.
Concurring “with the comments contained in the advisory
opinion,” the BCNR denied Mueller’s petition on January 21,
2003. J.A. 64. Because it was “unable to find specific
information to justify the reporting senior’s revision of
[Mueller’s] evaluation,” the BCNR concluded that “the evidence
submitted was insufficient to establish the existence of probable
material error or injustice.” Id.
On May 20, 2002, the same day that he petitioned the
BCNR to remove the original fitness report from his record,
Mueller also petitioned the Secretary of the Navy to convene a
special selection board, pursuant to 10 U.S.C. § 628(b), to
reconsider the promotion that the FY-02 promotion board had
denied him. As in his petition to the BCNR, Mueller stated that
the original fitness report was not accurate. He also noted that
the FY-02 promotion board had not had access to Weiss’
supplemental report, which was not submitted until after the FY-
02 board made its decision. Thus, Mueller claimed that the
action of the FY-02 board “involved a material error of fact,”
and that “the board lacked some material information for
consideration.” J.A. 67; see 10 U.S.C. § 628(b)(1) (authorizing
the Secretary to convene a special selection board if “the action
of the promotion board that considered the person . . . involved
material error of fact,” or “the board did not have before it for its
consideration material information”).
On January 21, 2003, the Secretary of the Navy denied
Mueller’s request for an FY-02 special selection board. The
Secretary found that Mueller “did not exercise due diligence” in
making sure that his record was complete before the FY-02
7
promotion board convened. J.A. 74. Thus, the Secretary
concluded, “a special promotion selection board is not
warranted.” Id.
On January 16, 2004, Mueller submitted a request for
reconsideration to the BCNR. The request asked that the Navy
both remove the original fitness report from his record and
convene “a special selection board for the FY-02 promotion
board.” J.A. 87; see J.A. 81-87. In support of his request,
Mueller submitted a sworn statement from Admiral Weiss,
stating that Weiss submitted the supplemental report “based
upon new information that [he] received from both LCDR
Mueller and from his direct supervisor,” and that this “new
information convinced [him] that the contested original fitness
report was inaccurate and needed to be corrected.” J.A. 88.
Weiss also stated that the “original fitness report contained
evaluation information based upon factual inaccuracies.” Id.
Weiss maintained that he “did not submit an amended fitness
report simply because it would enhance LCDR Mueller’s
opportunity for promotion or career,” but rather because he
“received new and material evidence concerning LCDR
Mueller’s performance of duties that convinced [him] the
original fitness report was in error at the time it was originally
submitted.” Id.
The BCNR denied Mueller’s renewed request to remove the
original fitness report from his record, stating that Mueller
“provided no new and material evidence or other matter not
previously considered,” and noting that Weiss’ sworn statement
“gives no specific information to explain his decision to give
[Mueller] a more favorable evaluation.” J.A. 108. The Board
also remained unconvinced that Mueller “could not have
submitted a letter to [Weiss] before the [FY-02] promotion
board met.” J.A. 109.
8
On January 16, 2004, the same day that he filed his request
for reconsideration with the BCNR, Mueller filed a request with
the Navy Personnel Command to remove the original fitness
report from his record pursuant to the Privacy Act, 5 U.S.C. §
552a, and the Navy’s Privacy Act regulations, Secretary of the
Navy Instruction (SECNAVINST) 5211.5D. The Navy denied
Mueller’s request on January 23, 2004, stating that record
amendments under the Privacy Act “are limited to the correction
of factual matters, not matters of opinion such as performance
appraisals, grades and comments by the reporting senior.” J.A.
111. Mueller appealed, and on August 17, 2004, the Secretary
of the Navy denied his appeal.
Thereafter, Mueller filed a complaint in the United States
District Court for the District of Columbia. The complaint
alleged that: (1) the Navy erred in failing to remove the original
fitness report from Mueller’s record pursuant to the Privacy Act;
(2) the BCNR’s denial of his request to remove the report was
arbitrary and capricious under the Administrative Procedure Act
(APA), 5 U.S.C. § 706(2)(A); and (3) the Navy’s refusal to
convene a special selection board for FY-02 was arbitrary,
capricious, and unsupported by substantial evidence under 10
U.S.C. § 628(g). The district court granted summary judgment
in favor of the Navy on all counts. See Mueller v. England, 404
F. Supp. 2d 51 (D.D.C. 2005). This appeal followed.
II
We begin with Mueller’s claim that the Navy violated the
Privacy Act by failing to remove the original fitness report from
his personnel record. The Privacy Act provides that “[e]ach
agency that maintains a system of records shall . . . maintain all
records which are used by the agency in making any
determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably
9
necessary to assure fairness to the individual in the
determination.” 5 U.S.C. § 552a(e)(5). It permits an individual
to “request amendment of a record pertaining to him” and
requires the agency either to “make any correction” to the record
or to “inform the individual of its refusal.” Id. § 552a(d)(2). If
the agency refuses to amend the record, the Act authorizes the
individual to bring an action in district court. Id. § 552a(g)(1).
The Privacy Act generally directs the district court to
review claims challenging an agency’s refusal to correct records
de novo. 5 U.S.C. § 552a(g)(2)(A); see White v. Office of Pers.
Mgmt., 787 F.2d 660, 663 (D.C. Cir. 1986). This court, in turn,
reviews a district court’s “grant of summary judgment de novo,
applying the same standard as the district court.” McCready v.
Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006). The government
contends that courts should apply a more deferential standard of
review to a military department’s Privacy Act determination
regarding military records.1 We have no need to address that
contention, however, as Mueller’s claim fails even under the de
novo standard.
1
In support of this contention, the government cites Cargill v.
Marsh, 902 F.2d 1006 (D.C. Cir. 1990), in which we affirmed the
dismissal of an Army officer’s suit to amend his military records under
the Privacy Act, because he had failed to exhaust his administrative
remedies before the Army Board for Correction of Military Records.
In so holding, we noted that permitting the plaintiff “to obtain de novo
judicial review of his challenge to the Army’s interpretation of its
regulation governing tuition reimbursement simply by choosing to
seek amendment of his records under the Privacy Act, before the
Army Privacy Review Board, rather than by proceeding before the
Correction Board, is inconsistent with the heightened deference
Congress intended the courts to accord determinations of the
Correction Board in proceedings under 10 U.S.C. § 1552(a).” Id. at
1008.
10
It is well-established that, “generally speaking, the Privacy
Act allows for correction of facts but not correction of opinions
or judgments.” McCready, 465 F.3d at 19 (internal quotation
marks omitted); see Kleiman v. Dep’t of Energy, 956 F.2d 335,
337-38 (D.C. Cir. 1992) (“[T]he Privacy Act allows for
amendment of factual or historical errors. It is . . . not a vehicle
for amending the judgments of federal officials or . . . other[s] .
. . as those judgments are reflected in records maintained by
federal agencies.” (internal quotation marks omitted)). If a
subjective judgment is “based on a demonstrably false” factual
premise, however, the Privacy Act compels the agency to
correct or remove the judgment from the complaining
individual’s record. White, 787 F.2d at 662; see R.R. v. Dep’t of
the Army, 482 F. Supp. 770, 774 (D.D.C. 1980).
The original fitness report prepared by Admiral Weiss is a
classic statement of an author’s subjective judgment about an
individual’s performance. In the contested portions of the
report, Weiss offers nothing more than his appraisal of Mueller’s
relative performance in a variety of categories during the
covered period, as well as his recommendation regarding
promotion. See White, 787 F.2d at 662 (describing a superior’s
performance evaluation as an opinion or judgment for Privacy
Act purposes); see also Hewitt v. Grabicki, 794 F.2d 1373, 1378
(9th Cir. 1986). Although the ratings in the supplemental report
are different from those in the original, they are still judgments
-- different judgments, but judgments nonetheless.
Mueller argues that the original fitness report is subject to
correction under the Privacy Act because the facts upon which
it was based “were expressly and emphatically discredited by
RADM Weiss -- the very person who had erroneously relied
upon them in the first place.” Plaintiff’s Br. 21. To be sure,
Weiss did state that the supplemental report was “based upon
new information that [he] received from both LCDR Mueller
11
and from his direct supervisor,” and that this “new information
convinced [him] that the contested original fitness report was
inaccurate and needed to be corrected.” J.A. 88. Weiss also
stated that the “original fitness report contained evaluation
information based upon factual inaccuracies.” Id. But Weiss
never described the “new information” or “factual inaccuracies”
to which he referred. Nor is there such a description in
Mueller’s briefs in either this court or the district court. See also
Oral Arg. Recording at 8:00 (statement by Mueller’s counsel
that he does not know what new information caused Weiss to
change his mind). There is, therefore, no way to determine
whether the inaccuracies Weiss discerned were errors of fact or
opinion.
Acknowledging that Weiss failed to state the nature of the
new information he received, or of the inaccuracies he discerned
in his original report, Mueller’s brief states:
[I]t is entirely possible that RADM Weiss could not
articulate reasons for his actions. That is because
subjective evaluations are necessarily premised on
“facts” of all shapes and sizes. Some are objective and
identifiable, like a person’s weight or score on a test.
Others are more subliminal and indefinable, like
perceptions and impressions.
Plaintiff’s Br. 18. This description of what underlay Weiss’
different evaluations may well be correct. But even if it is, it
dooms Mueller’s Privacy Act claim. As we have previously
held, “[w]here a subjective evaluation is based on a multitude of
factors, . . . and there are various ways of characterizing some of
the underlying events, . . . it is proper [for an agency] to retain
and rely on it.” White, 787 F.2d at 662. Accordingly, we affirm
the district court’s grant of summary judgment to the Navy on
the Privacy Act claim.
12
III
We next consider Mueller’s challenge, brought under the
APA, 5 U.S.C. § 706(2)(A), to the BCNR’s denial of his request
to have the original fitness report removed from his record. The
Secretary of a military department, acting through a civilian
board, “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).
Although the federal courts have “jurisdiction to review
decisions of [military] Correction Board[s], we do so under an
‘unusually deferential application of the “arbitrary or
capricious” standard’ of the APA.” Musengo v. White, 286 F.3d
535, 538 (D.C. Cir. 2002) (quoting Kreis v. Sec’y of the Air
Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)); see Cone v.
Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). “This deferential
standard is calculated to ensure that the courts do not become a
forum for appeals by every [officer] dissatisfied with his or her
ratings, a result that would destabilize military command and
take the judiciary far afield of its area of competence.” Cone,
223 F.3d at 793. This court reviews de novo the district court’s
ruling that the BCNR did not act arbitrarily or capriciously in
this case. Musengo, 286 F.3d at 538.
Mueller contends that the BCNR’s decision to retain the
original fitness report in his record was arbitrary because Weiss’
supplemental report and subsequent sworn statement establish
that it was inaccurate. As noted in Part II, however, Admiral
Weiss did not identify a single factual inaccuracy in the original
report. There was therefore nothing arbitrary about the BCNR’s
determination that it was “unable to find specific information to
justify the reporting senior’s revision of [Mueller’s] evaluation,”
and nothing unreasonable about its conclusion that “the evidence
submitted was insufficient to establish the existence of probable
material error or injustice.” J.A. 64.
13
Mueller insists that, even if Weiss’ evaluations were
subjective, his submission of a supplemental report establishes
that his original evaluation was incorrect. Mueller argues that
“Weiss[,] who actually generated the report, admitted its
inaccuracy.” Plaintiff’s Br. 16. This “inaccurate” report,
Mueller contends, caused him harm because it “portray[ed] him
as a mediocre officer whose performance was in decline when,
in fact, he was a stellar officer whose performance was as top-
notch as always.” Id. at 17.
Under Navy regulations, the BCNR “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 their
official duties.” SECNAVINST 5420.193 at § 3(e)(2). As we
explained in Cone v. Caldera, the military generally takes the
position that post-hoc reevaluations by reporting seniors are
insufficient to overcome that presumption of regularity, based
on the “understanding that raters may attempt to retract
otherwise accurate assessments when requested to do so by their
disappointed officers.” 223 F.3d at 794. We have repeatedly
reaffirmed the reasonableness of that position. See id.;
Musengo, 286 F.3d at 539-40. And that is the position the
BCNR took here, adopting the view of the Navy Personnel
Command that it should “not support changes of record to
improve an[] officer’s opportunity for promotion or career
enhancement.” J.A. 49; see J.A. 64 (BCNR decision,
“substantially concurr[ing]” in the Navy Personnel Command’s
view).
In this case, the Navy accepted Weiss’ late-filed
supplemental fitness report and, in accordance with Navy
regulations, retained both the original and the supplemental
report (as well as Weiss’ cover letter explaining the reasons for
the supplemental report) in Mueller’s record for future
14
promotion boards to consider. See BUPERSINST 1610.10 at ¶
P-8(a); see also J.A. 49 (Navy Personnel Command advisory
opinion); J.A. 63 (Mueller statement acknowledging that this is
Bureau of Naval Personnel practice). Where the BCNR has no
more evidence than it had here to determine whether a reviewer
changed his report out of sympathy for a disappointed officer,
there is nothing arbitrary about retaining both reports and
permitting future promotion boards to give each report the credit
they believe it deserves. Mueller may be right that future
promotion board members “would likely surmise from their own
experience that the change was at [the subject officer’s]
request,” J.A. 37, but here such a surmise would be correct. It
likewise may be true that retaining both reports “leaves a record
that a board member could, and probably would, construe as a
flaw in [the officer’s] record.” Id. But this court lacks the
expertise, not to mention the authority, to substitute its own
judgment about the validity of such a construction for that of
either the BCNR or a future promotion board member.
IV
Finally, we address Mueller’s challenge to the Navy’s
refusal to convene a special selection board for FY-02. The
Secretary of a military department is authorized, upon a finding
of “material unfairness” to a person passed over for promotion
by a regularly-scheduled promotion board, to “convene a special
selection board . . . to determine whether that person . . . should
be recommended for promotion.” 10 U.S.C. § 628(b)(1). A
federal court has authority to “review a determination by the
Secretary of a military department . . . not to convene a special
selection board.” Id. § 628(g). A court “may set aside the
Secretary’s determination,” however, “only if the court finds the
determination to be,” inter alia, “(i) arbitrary or capricious [or]
(ii) not based on substantial evidence.” Id.
15
The district court held, and the government now argues, that
since (as we have decided above) neither the Privacy Act nor the
APA requires the Navy to remove the original fitness report
from Mueller’s record, a special selection board “would have
nothing new or different to consider, and this claim is moot.”
Mueller, 404 F. Supp. 2d at 55 n.3. But this misapprehends
Mueller’s argument. The statute allows the Secretary to
convene a special selection board if the original promotion
“board did not have before it for its consideration material
information,” 10 U.S.C. § 628(b)(1)(B), and provides that, once
convened, the special selection board “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,” id. § 628(b)(2). As Mueller notes, the FY-02
promotion board did not have access to Weiss’ supplemental
report because it was not submitted until after the FY-02 board
made its decision. Hence, if his request for a special selection
board were granted, although the board would still have the
original fitness report, it would also have something new to
consider: the more favorable supplemental report.
Mueller’s claim is therefore not moot. Nonetheless, it is
without merit. Navy regulations state that a “special selection
board will not be convened to consider any officer who, through
the exercise of reasonable diligence, might have discovered and
corrected the error or omission in the official record prior to
convening the promotion selection board that considered, but
did not select the officer.” SECNAVINST 1401.1B at ¶ 6(b).
The Navy found that Mueller did not meet this due diligence
requirement, and therefore declined his request to convene a
special selection board.
In concluding that Mueller failed to exercise reasonable
diligence in trying to correct his record before the FY-02
promotion board met, the Navy relied on the following facts:
16
Although Admiral Weiss issued the original fitness report on
November 16, 1999 -- well in advance of the FY-02 promotion
board that met on April 17, 2001 -- Mueller made no
documented effort to correct his record until his January 14,
2002 letter to Weiss, eight months after the board convened.
Indeed, Mueller’s correspondence with the FY-02 board did not
suggest that he was attempting to correct his record. See J.A.
73-74. And this was so notwithstanding the fact that he received
another fitness report from Weiss six months after the one in
question, still well before the FY-02 board met. Although
Mueller points to other evidence indicating that he tried, but
failed, to connect with Weiss due to their busy schedules, the
Navy considered and rejected that argument. See J.A. 109
(“While the reporting senior’s letter of 16 October 2003
indicates his late submission of the supplemental report was due
to the inability of you and the reporting senior to ‘connect,’ the
[BCNR] was not persuaded that you could not have submitted
a letter to him before the promotion board met.”).
There may have been sufficient evidence for the Navy to
conclude that Mueller satisfied the due diligence requirement.
But it was also reasonable for the Navy to reach the opposite
conclusion. That being the case, we cannot find the Board’s
refusal to convene a special selection board arbitrary, capricious,
or unsupported by substantial evidence. See, e.g., Morall v.
DEA, 412 F.3d 165, 176 (D.C. Cir. 2005) (“In applying the
substantial evidence test, we have recognized that an agency
decision may be supported by substantial evidence even though
a plausible alternative interpretation of the evidence would
support a contrary view.” (internal quotation marks omitted));
Air Canada v. Dep’t of Transp., 148 F.3d 1142, 1153 (D.C. Cir.
1998) (holding that, although the petitioners’ position “may be
reasonable, there is nothing unreasonable about the
Department’s alternative view”).
17
V
For the foregoing reasons, the district court’s grant of
summary judgment in favor of the Navy is
Affirmed.