Strickland v. United States

United States Court of Appeals for the Federal Circuit

05-5012

MICHAEL STRICKLAND,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

John B. Wells, of Slidell, Louisiana, argued for plaintiff-appellee.

Anthony J. Steinmeyer, Attorney, Appellate Staff, Civil Division, United States
Department of Justice, of Washington, DC, argued for defendant-appellant. With him
on the brief was Peter D. Keisler, Assistant Attorney General. Of counsel on the brief
was Gregory R. Bart, Lieutenant Commander JAGC, Office of the Judge Advocate
General, General Litigation Division, United States Department of the Navy, of
Washington, DC. Of counsel were David M. Cohen, Director, Franklin E. White, Jr.,
Assistant Director and Gregory T. Jaeger, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington, DC.

Appealed from: United States Court of Federal Claims

Judge Susan G. Braden
 United States Court of Appeals for the Federal Circuit

05-5012

MICHAEL STRICKLAND,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

__________________________

DECIDED: September 16, 2005
__________________________

Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.

MICHEL, Chief Judge.

The United States (“Government”) appeals the decision of the United States

Court of Federal Claims granting judgment upon the administrative record in favor of the

plaintiff, Michael Strickland (“Strickland”). The judgment directed that Strickland’s Naval

record be corrected to expunge all references to the general discharge mandated by

Naval regulations following Strickland’s state court conviction of a sex offense, and that

he be awarded three months of constructive service to qualify him for retirement.1

Strickland v. United States, 61 Fed. Cl. 443 (2004). The trial court judgment nullified the

1
In his complaint, Strickland sought “restoration” (reinstatement) to active
duty with all pay and allowances retroactive to the date of discharge. Under the Military
Pay Act, 37 U.S.C. § 204 (2000), Strickland would be entitled to monetary damages
from the United States upon reinstatement. Thus, the Court of Federal Claims had
jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000).
decision of the Navy Assistant Secretary for Manpower and Reserve Affairs (“Assistant

Secretary”)2 to leave the discharge record unchanged, treating it as ultra vires and

treating the recommendation favoring correction by the Board for Corrections of Naval

Records (“Board”) as the final and correct decision. Because the Assistant Secretary’s

decision to reject the Board recommendation fell within the power expressly granted to

each service Secretary by Congress in 10 U.S.C. § 1552(a)(1), we reverse and remand

for adjudication on the merits of whether the Secretary’s decision was arbitrary and

capricious, unsupported by substantial evidence, or otherwise contrary to the law under

the deferential standards for review on the administrative record.

I. Background

Strickland served for many years in the United States Navy without incident. In

1998, however, he was arrested and charged with a sex felony. Ultimately, he pled no

contest to a misdemeanor charge of indecent exposure. Consequently, the Navy

separated him with a General Discharge under Honorable Conditions because Navy

regulations mandated such separation for that particular type of offense. See Military

Personnel Manual (MILPERSMAN) § 1910-144 (2005). In October 2001, Strickland

filed a petition for relief, and the Board recommended to the Assistant Secretary that

Strickland’s discharge be set aside as unfair. In essence, the Board found that

Strickland’s plea was induced by erroneous advice from his commanding officer, who

told him that such a conviction would not require his discharge. However, the Assistant

Secretary disagreed with the Board’s recommendation and denied Strickland’s request.

The Assistant Secretary found that factors other than the incorrect advice actually

2
The Assistant Secretary is the Secretary of the Navy’s designee for final
agency decisions on correction of personal records. 32 C.F.R. § 700.324 (2004).

05-5012 2
induced the plea, including fear of a felony conviction and incarceration, and large legal

fees.

Strickland filed this action in the Court of Federal Claims seeking to overturn the

Assistant Secretary’s decision. On cross motions for judgment upon the administrative

record, the trial court ruled in favor of Strickland. The trial court interpreted § 1552(a) to

provide that the Board, not the Secretary or his designee, was the final authority

regarding requests for military records corrections. The applicable portions of the

statute are as follows:

(a) (1) The 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 . . . . [S]uch
corrections shall be made by the Secretary acting through boards . . . .

....

(3) Corrections under this section shall be made under procedures
established by the Secretary concerned. In the case of the Secretary of a
military department, those procedures must be approved by the Secretary
of Defense.

10 U.S.C. § 1552(a) (2000) (emphases added).

The trial court interpreted the first sentence of § 1552(a)(1) to mean that

Congress has empowered the Secretary with the discretion to evaluate requests for

correction of a military record. Strickland, 61 Fed. Cl. at 451. However, the trial court

found that in the second sentence, specifically the “acting through boards” phrase,

Congress eliminated the Secretary’s discretion once the application for correction was

submitted to the Board. Id. at 452. In addition, the trial court found no language later in

§ 1552(a) that expressly authorizes the Secretary to reject or modify the position of the

Board. Id. The trial court stated that its interpretation of § 1552(a) was consistent with

05-5012 3
Chappel v. Wallace, 462 U.S. 296 (1983), in which the Supreme Court stated that

“Board decisions are subject to judicial review.” Id. at 303. The trial court then

concluded that Congress had delegated the final authority on whether to make

corrections to each service’s Board, not its Secretary, and ordered Strickland’s Naval

record corrected in accordance with the Board’s recommendation. Id. at 451-52.

The Government moved for reconsideration, arguing that the trial court’s decision

contravened controlling precedent, namely Boyd v. United States, 207 Ct. Cl. 1 (1975),

in which this court’s predecessor, the United States Court of Claims, held that the

Secretary has discretionary authority under § 1552(a) to disagree with the Board. Id. at

8. The Government also cited Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979),

which followed and further explained Boyd, as controlling precedent.

In response to the Government’s motion, the Court of Federal Claims held that

Boyd was invalid and thus not controlling as it conflicted with the Supreme Court’s

earlier holding in Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316 (1961). In

that case, the Court held that an agency’s power is defined “not [by] what the Board

thinks it should do but what Congress has said it can do.” Id. at 322. That is, the

agency cannot expand by regulation its powers beyond those Congress granted to it.

Relying on Delta Air Lines, the trial court stated that the Boyd court had wrongly upheld

the Secretary’s authority to take final action because, in its view, Boyd relied on a

regulation, rather than on § 1552(a)(1). Strickland v. United States, 61 Fed. Cl. 689,

690 (2004) (“Reconsideration”). Further, the trial court explained that Sanders was also

invalid, determining it violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 704

(2000). The APA provides for judicial review only of “final” agency actions, yet Sanders

05-5012 4
recognized judicial review of decisions of both the Secretary and the Board. Having

found reasons to its satisfaction for disregarding these two precedents, the trial court

denied the Government’s motion for reconsideration.

The Government timely appealed the trial court’s decision. We have subject

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

II. Discussion

The sole issue on appeal is whether the Assistant Secretary acted outside his

statutorily-granted powers when he rejected the recommendation of the Board. For the

many reasons stated below, we conclude that he did not, and that the trial court erred in

interpreting § 1552(a) to mandate that the Assistant Secretary cannot reject a Board

recommendation.

Statutory interpretation is, of course, a question of law, which we review without

deference. See, e.g., Bowey v. West, 218 F.3d 1373, 1376 (Fed. Cir. 2000). In the first

sentence of § 1552(a)(1), Congress explicitly delegated to the Secretary plenary power

and discretion to correct military records whenever he “considers it necessary to correct

an error or remove an injustice.” 10 U.S.C. § 1552(a)(1) (2000). In the second

sentence, Congress required that “such corrections shall be made by the Secretary

acting through boards. . . .” Id. Unlike the trial court, we see nothing in the second

sentence that bars the Secretary from rejecting the recommendation of the Board.

A.

Our interpretation of § 1552(a) complies, as it must, with the express holdings of

the Court of Claims in Boyd v. United States, 207 Ct. Cl. 1 (1975) and Sanders v. United

States, 594 F.2d 804 (Ct. Cl. 1979). S. Corp. v. United States, 690 F.2d 1368, 1369

05-5012 5
(Fed. Cir. 1982) (“[T]he holdings of . . . the United States Court of Claims . . . shall be

binding as precedent in this court.”). In Boyd, the Air Force Board for Corrections of

Military Records recommended that Boyd be reinstated after he was twice deferred for

promotion and mandatorily retired, but the Secretary rejected the recommendation. 207

Ct. Cl. at 5. The Boyd court squarely held that while the Secretary was required to act

through the Board pursuant to § 1552, he “has by regulation authorized by statute

retained the authority to take such final action on board recommendations as he

determines to be appropriate.” Id. at 13-14 (emphasis added).

The trial court cast aside Boyd, holding that the Secretary attempted to “expand

[his] congressionally mandated authority by regulation” when he declined to adopt the

Board’s recommendation. Reconsideration, 61 Fed. Cl. at 690 (emphasis added). We

disagree. The trial court’s emphasis on the regulations is misplaced. As the Boyd court

correctly stated, although the Secretary “in correcting a military record is to act through

a board of civilians,” Boyd, 207 Ct. Cl. at 8, the statute authorizes him to “retain[ ] the

authority to take such final action on board recommendations as he determines to be

appropriate.” Id. In the words of the Boyd court, “[i]t is clear from the statute that the

Secretary's decision is a discretionary one.” Id. at 7 (emphasis added). Thus, the

Secretary’s limitation on Board involvement is expressly authorized by Congress.

Our predecessor court, we conclude, did not rely on the Secretary’s regulation,

but rather on express delegation in the statute itself. See id.; cf. id. at 14 (holding that

another statute, 10 U.S.C. § 8012, gives the Secretary authority to delegate his powers

to the corrections board, just as with other civilian personnel of a military service)

(emphasis added). Because the Boyd court expressly discerned a sufficient statutory

05-5012 6
grant of authority in § 1552(a), its reasoning is perfectly consistent with the Supreme

Court ruling in Delta Air Lines, which simply states the legal truism that an agency

cannot expand by its regulations the power Congress granted to it. 367 U.S. at 322.

We hold that Boyd does not conflict with the Supreme Court holding in Delta Air Lines,

on which the trial court relied. Thus, Boyd remains valid. It binds us as well as the trial

court.3

The Government also contends that the trial court erred in disregarding Sanders

as violative of the APA because, in fact, only the Secretary’s decision is subject to

judicial review. See Reconsideration, 61 Fed. Cl. at 691 (citing Sanders, 594 F.2d at

815). We agree with the Government. After receiving a favorable recommendation

from the Air Force Board for Corrections of Military Records in his request for removal of

certain officer effectiveness reports, which the Secretary adopted, Sanders

unsuccessfully applied to the Board for removal of certain passovers from his record.

Sanders, 594 F.2d at 808-09. The petitioner appealed to the United States Court of

Claims, arguing that the Board acted arbitrarily and capriciously in rejecting his petition.

Id. The court in Sanders cited the lack of a rationale for the Board’s rejection and

remanded the case with instructions "to make findings of fact showing the basis for its

conclusions." Id. at 809. The trial court in Strickland explained that, under the APA, it

3
Ordinarily, a trial court may not disregard its reviewing court’s precedent.
See Crowley v. United States, 398 F.3d 1329, 1335 (Fed. Cir. 2005) (noting that the
Court of Federal Claims is required to follow Federal Circuit precedent). There are two
narrow exceptions: if the circuit’s precedent is expressly overruled by statute or by a
subsequent Supreme Court decision. See Bankers Trust N.Y. Corp. v. United States,
225 F.3d 1368, 1372 (Fed. Cir. 2000). Neither occurred here. Otherwise, a circuit court
decision, if applicable, controls until the circuit court overrules it en banc. Id. Thus, the
trial judge, believing that Boyd and Sanders contravene a Supreme Court precedent
and the APA, respectively, may do no more than criticize those opinions, urging en banc
revision.

05-5012 7
only has jurisdiction to review a “final agency action” and that final decisional authority

can reside in only one entity within an agency. Reconsideration, 61 Fed. Cl. at 691.

Consequently, the trial court said that the Sanders court violated the APA by implying

that the actions of two entities within the same agency are subject to judicial review. Id.

The court in Sanders, we conclude, made no such error. Rather, in each service,

the correction board process provides for a single final agency action in every case.

Initially, a service member applies for correction from the Board, and the Board

assembles a record of the service member’s performance.4 Based on this record, the

Board may make a recommendation on the disposition of the case, but nevertheless

must forward the entire record to the Secretary. See, e.g., 32 C.F.R. § 723.6 (2004)

(Navy regulation). After reviewing the record and the Board’s recommendation, the

Secretary or his designee makes the one and only actual decision. See id. This

decision is plainly the final agency action under the APA. Once the final decision

issues, the service member may contest this final agency action in a court.

If the service member does so, the court must review the rationale underlying the

Secretary’s decision to determine if the decision was arbitrary, capricious, unsupported

by substantial evidence, or in violation of law. Sanders, 594 F.2d at 811. If the

Secretary adopts the Board’s recommendation, then the court reviews the Secretary’s

decision in terms of the Board’s rationale. If, however, the Secretary disagrees with the

Board and rejects its recommendation, then the Secretary must provide a written

statement supporting his rejection. See, e.g., § 723.7 (2004) (Navy regulation). In that

case, the court reviews the decision on the basis of the Secretary’s written statement.

4
Each branch of the military has its own regulations detailing this process.
See, e.g., 32 C.F.R. §§ 723.3, 723.6 (2004) (reciting Naval regulations).

05-5012 8
We hold that a court does not violate the APA when it reviews the Secretary’s decision--

which incorporates either the Secretary’s rationale or the Board’s rationale, depending

on the circumstances--because in either case the Secretary’s decision is the one and

only final agency action. Accordingly, we find no conflict between the holding in

Sanders and the APA. Hence, Sanders too remains good law and binds us as well as

the trial court.

B.

Even if we were to agree with the trial court holding that Boyd and Sanders are

not controlling as invalid, and that § 1552 does not expressly grant the Secretary

authority to reject Board recommendations, we would still have to uphold the

Secretary’s decision based on the consistent, continual construction of § 1552 in the

applicable regulations of all four service branches. Without doubt, Congress has

expressly delegated authority to the Secretary of each military department to issue

regulations on the procedures to be employed in considering possible corrections under

§ 1552. See 10 U.S.C. § 1552(a)(3) (2000). Each service Secretary has issued such

regulations, and, for each service branch, the regulations provide authority for the

Secretary to override Board decisions upon following prescribed procedures. See 32

C.F.R. § 723.7 (Secretary of the Navy); id. § 581.3(g)(3) (Secretary of the Army); id. §

865.5 (Secretary of the Air Force); 33 C.F.R. § 52.64(b) (Secretary of Homeland

Security for the Coast Guard). Contrary to the trial court’s ruling, the statutory provision

that “corrections shall be made by the Secretary acting through boards” does not

unambiguously exclude the Secretary from the corrections process by divesting

Secretarial authority to alter Board recommendations under all circumstances. That is

05-5012 9
particularly apparent in light of the first sentence of § 1552(a)(1), which provides broadly

that the Secretary “may correct any military record of the Secretary’s department when

the Secretary considers it necessary to correct an error or remove an injustice.”

(emphasis added). Accordingly, under the principles of Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), we are required to defer to the

consistent, long-standing interpretation of the statute set forth in all four service branch

regulations, provided it is reasonable. Here, it is reasonable. In light of the silence of

the statute as to the precise role of the Secretary with respect to Board

recommendations with which the Secretary disagrees, the regulations constitute a

permissible form of “gap-filling” in which the agency is authorized to speak to an issue

on which the statute was not explicit. See Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 125 S. Ct. 2688, 2700 (2005) (“it is for agencies, not courts, to fill

statutory gaps”).

In addition, Congress, aware of the decades-old interpretation of § 1552, has

declined to amend the statute to nullify the regulations. Whereas the statute has been

amended nine times since 1946, the changes have not negated the regulations. The

Navy regulations, for example, have undergone only two minor amendments since their

initial promulgation in 1952. See 10 U.S.C. § 1552 (2000). Compare Board for the

Correction of Naval Records, 17 Fed. Reg. 10,243-46 (Nov. 11, 1952) (codified as 32

C.F.R. Part 723) with Miscellaneous Amendments to Board for Correction of Naval

Records, 26 Fed. Reg. 12121-22 (Dec. 19. 1961) and Board for Correction of Naval

Records, 62 Fed. Reg. 8166-70 (Feb. 24, 1997). In Congress’ knowledge of the

regulations interpreting and implementing § 1552, in existence for fifty years, and its

05-5012 10
subsequent inaction, we have yet another reason to hold that Congress clearly has

delegated the final authority regarding any correction of military records to the

Secretary, not the correction board.

C.

This interpretation of § 1552(a) is uniform across the circuits. For example, the

Court of Appeals for the District of Columbia Circuit has held that “the Secretary did not

abuse his discretion in rejecting the Board’s finding” since § 1552(a) “leaves no doubt

that the final decision is to be made by [the Secretary].” Miller v. Lehman, 801 F.2d

492, 497 (D.C. Cir. 1986); see also Gottlieb v. Pena, 41 F.3d 730, 733 (D.C. Cir. 1994)

(stating that § 1552(a) authorizes the Secretary of Transportation [now Homeland

Security] to correct Coast Guard military records according to procedures he

establishes, and thus authorizes him to establish Board decisions to be

recommendations, not final decisions). Likewise, the Court of Appeals for the Ninth

Circuit held that § 1552 and the applicable regulations “permit the Secretary to reject the

recommendation of the Board” when, in his judgment, the recommendation is not

necessary to correct an error or injustice. Barber v. Widnall, 78 F.3d 1419, 1423 (9th

Cir. 1996). Other circuits too have held that the Secretary is authorized to reject a

Board recommendation so long as he acts on the basis of either explicitly stated policy

reasons or evidence in the record. E.g., Neal v. Sec’y of Navy, 639 F.2d 1029, 1043

(3d Cir. 1981); Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975). Indeed, this has

been the uniform understanding of the Secretary’s power since the statute was enacted

in 1946.

05-5012 11
 D.

We cannot accept the trial court’s reliance on the Supreme Court’s decision in

Chappel v. Wallace, 462 U.S. 296 (1983). In Chappel, the Supreme Court held that

Navy personnel could not use the civilian courts to sue their superiors; rather, the

service members must seek relief through the military justice forums, such as court

martial proceedings or the correction board. 462 U.S. at 303. In dictum, the Court

stated that “Board decisions are subject to judicial review.” Id. The trial court

interpreted this dictum to mean that all Board decisions are final agency actions which

the Secretary may not alter. Strickland, 61 Fed. Cl. at 448. The issue in Chappel,

however, was not whether the Board had the final decision-making authority, but

whether the proper venue for personnel disputes was the civilian or military courts.

Chappel, 462 U.S. at 303. The Court merely mentioned correction boards as one

example of a forum available to service members seeking relief. Likewise, our cases

citing Chappel do not discuss the relative powers of the Secretary and the Board. See,

e.g., Porter v. United States, 163 F.3d 1304, 1324-25 (Fed. Cir. 1998) (clarifying the

relationship between the Board and the Special Selection Board), cited in Strickland, 61

Fed. Cl. at 449. Hence, we hold that neither Chappel nor the Federal Circuit decisions

following Chappel establish Board recommendations as a final agency action

unalterable by the Secretary.

Nor are we persuaded by the trial court’s reliance on two cases from the United

States Court of Claims, Proper v. United States, 154 F. Supp. 317 (Ct. Cl. 1957), and

Weiss v. United States, 408 F.2d 416 (Ct. Cl. 1969). The trial court opinion cites Proper

and Weiss to support its holding that the final authority over corrections is vested

05-5012 12
exclusively in the Board. Such reliance is misplaced, for neither case supports the

holding below. Proper involved a request to correct the medical records of a service

member diagnosed with multiple sclerosis. A retired Army general serving as an

advisor to the Secretary sent a memorandum to the Assistant Secretary advising

rejection of the Board recommendations. Proper, 154 F. Supp. at 324. He attached a

directive denying relief, which the Secretary signed and issued. Id. The court pointed

out that, contrary to statute, the Secretary had involved a member of the military in the

civilian corrections process. Id. at 326. In addition, the court held that the Secretary

acted arbitrarily in disregarding the civilian Board’s findings, which, it found, were fully

supported by the record. Id. at 326-27. The Proper court stated that “we do not

suggest that the Secretary may not overrule the recommendations of the Correction

Board where the findings of that Board are not justified by the record on which the

findings were made.” Id. at 326. Thus, rather than supporting the trial court’s

interpretation, Proper clearly supports our interpretation of § 1552(a).

Similarly, in Weiss, the Court of Claims held that the Secretary’s rejection of the

Board recommendation was unjustified because the Board recommendation was fully

supported by the record and the Secretary had, instead, blindly followed the advice of a

military officer. The court noted that the Secretary had routed the Board’s

recommendation directly to the Navy Judge Advocate General for “comment or

recommendations.” Weiss, 408 F.2d at 420. Based on the short time frame involved,

the court concluded that the Secretary could not have reviewed the record himself nor

allowed his civilian staff to review it. Id. at 420-21. The Weiss decision states: “[t]he

thrust of the Proper opinion is that a Secretary of a military department cannot overrule

05-5012 13
the recommendations of a civilian correction board on the advice of a military officer

unless the findings of the board are not justified by the record before it.” Id. (emphasis

added). Therefore, Weiss too supports our holding that the final authority regarding

requested corrections is vested with the Secretary.

Finally, the trial court missed the point of Proper and Weiss: Congress wanted

final decisions on records corrections to be made by civilians in each military

department, not uniformed officers. In both cases the Secretary effectively deferred to a

professional military officer over the reasonable decision of the Board. But the Assistant

Secretary and the Navy corrections board members--the only parties involved in the

Strickland matter--are all civilians. In Strickland’s case, no uniformed officer was

involved in any decision-making. Thus, these two cases, which had as a precondition

the involvement of a uniformed military officer, have no application here.

E.

Strickland, rather than defend the trial court’s interpretation of § 1552(a) and its

refusal to follow Boyd, offers an alternative ground for us to affirm the trial court’s

decision: Boyd is inapposite because it construed a prior version of § 1552(a). Section

1552(a) was amended in 1989, Strickland alleges, to delete the phrase “under

procedures established by him”. Strickland argues that Congress removed the “under

procedures” phrase to eliminate discretionary power of the Secretary to overrule the

Board. As a result, Strickland asserts, both Boyd and Sanders are inapplicable as each

interpreted a “significantly different statute” than the one in effect at the time of his claim

in 2001. For three reasons, we must reject Strickland’s argument. First, in the 1989

amendment, Congress did not delete the phrase. It merely moved the phrase “under

05-5012 14
procedures established by him” from subsection (a)(1) to the newly-created subsection

(a)(3).5 Second, moving it made no substantive change on the meaning of subsection

(a) as a whole. Third, the legislative history of the 1989 amendment contains no

indication that this relocation of the phrase was intended as anything more than a

housekeeping measure. Thus, we hold that Boyd and Sanders do indeed apply to the

statute in effect in 2001 and govern the outcome in this case.

III. Conclusion

We hold that, under the binding precedent of Boyd and Sanders, the Assistant

Secretary’s decision to overrule the Board recommendation was within the power

granted to the Secretary by Congress in 10 U.S.C. § 1552(a)(1), as properly interpreted.

Congress granted this power to Secretaries and their designees in all four service

branches. We therefore reverse the Court of Federal Claims’ judgment. We remand

this case to the trial court to determine whether the Secretary’s rejection of the Board

recommendation was arbitrary or capricious, unsupported by substantial evidence, or

otherwise contrary to the law. We, of course, intimate no view on the merits.

REVERSED and REMANDED

5
Section 1552(a)(3) now reads “[c]orrections under this section shall be
made under procedures established by the Secretary concerned.” 10 U.S.C.
§ 1552(a)(3) (2000).

05-5012 15