Reilly v. Secretary of the Navy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
RICHARD J. REILLY, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-cv-0544 (KBJ)
)
SECRETARY OF THE NAVY, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

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.)

1
 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.

I. BACKGROUND AND PROCEDURAL HISTORY

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.

1
The Secretary of the relevant military department appoints the members of the selection board
according to certain criteria that are laid out in the statute and are not relevant here, as Reilly does not
challenge the constitution of the selection board. See 10 U.S.C. § 14102.

2
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 occurred

2
Although the record does not reflect the exact date of Reilly’s selection, based on record evidence
concerning the Major selection process for subsequent years, it is likely that Reilly’s selection occurred
in approximately April of 2002. (See AR at 220 (Memorandum from CMC to Reilly Regarding
Mandatory Separation) (indicating that 2006 Major Promotions List was determined in April of 2005).)

3
in 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 an

3
Liberty is “the authorized absence of an individual from a place of duty not chargeable as leave.”
Marine Corps Manual W/CH 1-3 at A-2 (March 21, 1980).
4
The Commandant of the Marine Corps is the highest-ranking officer in the Marine Corps. He is
appointed by the President and reports directly to the Secretary of the Navy. See 10 U.S.C. § 5043.
The record in this case does not reflect the specific circumstances under which the CMC drafted the
memo—that is, whether it was pursuant to standard internal procedures, whether Reilly or the Secretary
of the Navy requested that the CMC draft the memo, or whether the CMC drafted the memo of his own
volition.

4
otherwise 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 this

5
officer’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

5
The Deputy Secretary’s letter to the President did not specifically reference the CMC’s June 9, 2013,
memorandum to the Acting Secretary of the Navy, nor did it specifically state what documents it was
referencing when it referred to “Captain Reilly’s response” and the “investigative report.”
6
Because his 2003 promotion application took nearly two and a half years to process, Reilly had to
wait until 2005 to re-apply for promotion.
7
10 U.S.C. § 14505 provides that: “a captain on the reserve active-status list of the . . . Marine Corps
. . . who has failed of selection for promotion to the next higher grade for the second time . . . shall be
separated in accordance with section 14513 of this title not later than the first day of the seventh month
after the month in which the President approves the report of the board which considered the officer for
the second time.”

6
 [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 their official duties.” Id. § 723.3(e)(2).

When the BCNR denies an application, it must “be made in writing and include a brief

statement of the grounds for denial.” Id. § 723.3(e)(3). The BCNR’s written opinion

must also attach “any advisory opinion considered by the Board which is not fully set

out in the statement.” Id. § 723.3(e)(4).

Reilly’s petition to the BCNR specifically requested that all documents

associated with his removal from the 2003 Major Promotion List be removed from his

official record, and that his failure to be selected to the 2006 Major Promotion List be

removed from his record as well. (AR at 9 (BCNR Petition).) The stated basis for

Reilly’s petition was his belief that the Deputy Secretary of Defense (and consequently

the President) had received erroneous information regarding the CMC’s opinion of

whether Reilly should be retained on the 2003 Major Promotion List. (Id. at 6-7;

Plaintiff’s Response to Motion to Dismiss (ECF No. 11) (“Pl. Br.”) at 4.) According to

Reilly, the Deputy Secretary of Defense had mischaracterized the CMC as having “lost

trust and confidence in this officer’s ability to assume positions of greater

7
responsibility” (AR at 13 (Wolfowitz Memo)), when in fact, quite to the contrary, the

CMC’s prior memorandum to the Secretary of the Navy had specifically stated that “I

recommend that Captain Reilly’s name remain on the Fiscal year 2003 Reserve Major

Promotion List” (AR at 11 (CMC Memo)). Given this alleged mistake, Reilly reasoned

that, if the BCNR removed all of the documents that had been added to his file related

to promotion after his name was placed on the 2003 Major Promotion List, then his

place on the 2003 Major Promotion List would be restored and could then be

resubmitted to the Secretary of the Navy and the President for approval. (AR at 6-7

(BCNR Petition).)

After receiving Reilly’s petition, the BCNR sought an advisory opinion on

Reilly’s case from the Judge Advocate Division of the Military Justice Branch (“JAM”)

at Headquarters Marine Corps. (Defendants’ Brief in Support of Motion to Dismiss

(ECF No. 10-1) (“Def. Br.”) at 5; Pl. Br. at 4-5.) On August 26, 2005, JAM provided

an opinion recommending that Reilly’s petition be denied. (AR at 15 (JAM Advisory

Opinion).) JAM’s opinion was based largely on the affidavit of Matthew Spurlock, a

JAM lawyer. (Id.) Spurlock’s affidavit stated that he had interviewed Major Peter

Gillis, who had been the Head of Officer Promotions for MCR during the time when the

removal of Reilly’s name from the 2003 Major Promotion List was under consideration.

(AR at 17 (Spurlock Affidavit).) Spurlock averred that Major Gillis told him that Gillis

had personal knowledge that the CMC had changed his recommendation regarding

Reilly, and that the Deputy Secretary of Defense’s May 31, 2004, memorandum to the

President accurately reflected the CMC’s final recommendation. (Id.) The BCNR

obtained an affidavit from Major Gillis himself in August of 2005, which was identical

8
in substance to the affidavit that Spurlock provided. (AR at 19 (Gillis Affidavit).)

BCNR procedures provided Reilly a chance to respond to both affidavits, which he did.

Reilly criticized the affidavits as hearsay, and also questioned both how Major Gillis

could have been privy to conversations between much higher-ranking officers and why

there was no written document memorializing the CMC’s supposed change of opinion

regarding Reilly’s promotion. (AR at 20-24 (Letters from Reilly’s Counsel to BCNR

Responding to JAM Advisory Opinion).)

On October 17, 2005, the BCNR issued a two-page decision denying Reilly’s

petition to “correct” his personnel file by removing promotion-related records. (AR at

1-2 (BCNR Decision Letter).) The BCNR decision found that “the evidence submitted

was insufficient to establish the existence of probable material error or injustice.” (Id.)

In so finding, the BCNR relied primarily upon the affidavit of Major Gillis, as well as

the “presumption of regularity” that “attaches to all official records.” (Id. at 2.)

E. Reilly Files A Lawsuit

On August 3, 2009, Reilly filed a complaint in the United States Court of Federal

Claims, alleging claims under the Tucker Act, 28 U.S.C. § 1491, and the APA, and

seeking restoration of rank as well as all emoluments and back pay. See Reilly v.

United States, 93 Fed. Cl. 643, 645 (Fed. Cl. 2010). 8 On July 9, 2010, the Court of

Federal Claims dismissed Reilly’s monetary claims pursuant to Fed. R. Civ. P. 12(b)(6).

Id. at 650. The court held that the Tucker Act did not apply because Reilly had failed

to identify any constitutional, statutory, or regulatory basis supporting the argument

8
The Tucker Act, which Reilly invoked as the basis of his monetary claims, affords the Court of Federal
Claims jurisdiction over “any claim against the United States founded either upon the Constitution, or
any Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding in
tort.” 28 U.S.C. § 1491 (2012).

9
that he was entitled to monetary relief. Id. at 648-649. The Court of Federal Claims

also concluded that it had no jurisdiction over Reilly’s request for non-monetary relief

and, accordingly, transferred Reilly’s remaining claims to this Court pursuant to 28

U.S.C. § 1631. Id. at 653.

The instant case was docketed in the United States District Court for the District

of Columbia on March 15, 2011 (ECF No. 1), and Reilly filed his Amended Complaint

on January 30, 2012. (ECF No. 6.) As noted above, the Amended Complaint contains

two counts: improper discharge (Am. Compl. ¶¶ 12–15), and violation of the APA

based on the BCNR’s allegedly erroneous denial of Reilly’s petition (id. ¶¶ 16–19). On

March 30, 2012, Defendants filed the instant motion, arguing that Reilly’s claims

should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

for lack of subject matter jurisdiction and/or failure to state a claim upon which relief

can be granted, or in the alternative that the Court should grant summary judgment in

Defendants’ favor. (See generally Def. Br.) The motion was fully briefed on May 30,

2012, and after transfer of this case to the undersigned on April 5, 2013, this Court held

a motions hearing on June 12, 2013.

II. STANDARD OF REVIEW

A. Motion To Dismiss

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the

Court must treat a complaint’s factual allegations as true, and must grant plaintiff the

benefit of all inferences that can be derived from the facts alleged. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000). Nevertheless, the Court need not accept inferences that favor

10
the plaintiff if the facts alleged in the complaint do not support them, nor must the

Court accept a plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002).

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by

a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992); Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal

courts are courts of limited jurisdiction and the law presumes that “a cause lies outside

this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004)

(“As a court of limited jurisdiction, we begin, and end, with an examination of our

jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a

statutory requirement . . . no action of the parties can confer subject matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir.

2003) (quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982)).

When considering a motion to dismiss for lack of jurisdiction, unlike when

deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the

allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.

1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider

such materials outside the pleadings as it deems appropriate to resolve the question [of]

whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics,

104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis., 974 F.2d

192, 197 (D.C. Cir. 1992).

11
 With respect to motions to dismiss under Rule 12(b)(6), a plaintiff need not

plead “detailed factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); however, a plaintiff must plead enough facts to make the claim seem plausible

on its face. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citation omitted). Although a plaintiff may still survive a

Rule 12(b)(6) motion even where “recovery is very remote and unlikely[,]” the facts

alleged in the complaint “must be enough to raise a right to relief above the speculative

level[.]” Twombly, 550 U.S. at 555–56 (internal quotation marks and citation omitted).

Moreover, a pleading must offer more than “labels and conclusions” or a “formulaic

recitation of the elements of a cause of action[.]” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555).

B. Summary Judgment In Administrative Review Cases

As a general matter, summary judgment will be granted “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). “A

fact is material if it ‘might affect the outcome of the suit under the governing law,’ and

a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692

(D.C. Cir. 2008) (quoting Anderson, 477 U.S. at 248).

“Summary judgment is the proper mechanism for deciding, as a matter of law,

whether an agency action is supported by the administrative record and consistent with

12
the APA standard of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d

42, 52 (D.D.C. 2010) (citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203,

207 (D.D.C. 2007)); see also Richards v. INS, 554 F.2d 1173, 1177 n. 28 (D.C. Cir.

1977). However, due to the limited role a court plays in reviewing the administrative

record to evaluate whether an agency has complied with the APA, the typical summary

judgment standards are not applicable. Stuttering, 498 F. Supp. 2d at 207. Rather,

“[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a

decision that is supported by the administrative record, whereas ‘the function of the

district court is to determine whether or not as a matter of law the evidence in the

administrative record permitted the agency to make the decision it did.’” Id. (quoting

Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words,

“when a party seeks review of agency action under the APA, the district judge sits as an

appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am.

Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and

citations omitted).

Significantly, the APA provides a “default standard” of judicial review of agency

actions on summary judgment when the governing statute does not otherwise provide

one: “[a] court must set aside agency action it finds to be ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.’” Tourus Records, Inc. v.

DEA, 259 F.3d 731, 736 n. 10 (D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). “The

‘arbitrary and capricious’ standard of review as set forth in the APA is highly

deferential,” and the Court must therefore “presume the validity of agency action.” Am.

Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Although the “court

13
 is not to substitute its judgment for that of the agency[,] . . . the agency must examine

the relevant data and articulate 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 (1983) (citations and quotation

marks omitted).

Finally, a court must apply an “unusually deferential” standard when reviewing

an action of a military record corrections board in particular. Piersall v. Winter, 435

F.3d 319, 324 (D.C. Cir. 2006). This is because military boards are entitled to even

greater deference than civilian administrative agencies. See Labin v. Harvey, Civ. No.

05-315, 2006 WL 949884, at *5 (D.D.C. Apr. 10, 2006). Such substantial deference

“ensure[s] that the courts do not become a forum for appeals by every soldier

dissatisfied with his or her ratings, a result that would destabilize military command

and take the judiciary far afield of its areas of competence.” Cone v. Caldera, 223 F.3d

789, 793 (D.C. Cir. 2000). Accordingly, in contrast to civilian agencies undergoing

APA review, a military agency is merely required to show a “rational connection

between the facts found and the choice made.” Frizelle v. Slater, 111 F.3d 172, 176

(D.C. Cir. 1997).

III. ANALYSIS

Defendants argue that Reilly’s Amended Complaint must be dismissed in its

entirety both on jurisdictional grounds and because Reilly’s complaint fails to state a

claim upon which relief can be granted. (See Def. Br. at 15-26.) For the reasons that

follow, the Court concludes that (1) Reilly’s claim for monetary relief as a result of his

alleged improper discharge must be dismissed; (2) there is no jurisdictional bar to the

14
Court’s consideration of Reilly’s improper discharge claim, but Reilly’s claim in this

regard (which is, at bottom, a request for an order requiring that the military reinstate

Reilly and promote him retroactively as a result of his alleged improper discharge) is

nonjusticiable and unreviewable; and (3) the BCNR did not act arbitrarily, capriciously,

or contrary to the evidence in violation of the APA when it denied Reilly’s petition to

correct his military personnel records.

A. Defendants’ Jurisdictional Challenges To Reilly’s Improper Discharge Claim

1. Reilly’s Claim For Monetary Damages

Defendants first maintain that this Court lacks subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1) to consider Reilly’s improper discharge claim

to the extent that Reilly seeks monetary damages, and they invoke sovereign immunity

as the basis for this argument. (See Def. Br. at 15-16.) But Reilly’s stated prayer for

“back pay,” “allowances,” and “interest” accrued “from the date he should have been

originally promoted in calendar year 2003” (Am. Compl. at 7)—which he asserts in

Count I as part of the improper discharge claim—is far more easily dispensed with,

primarily because Reilly has conceded Defendants’ dismissal arguments in regard to

this damages request and has expressly withdrawn this contention from his complaint.

Specifically, in response to Defendants’ argument that there has been no waiver of

sovereign immunity that would entitle Reilly to monetary relief under any of the

applicable statutes, Reilly has made clear that his request for monetary damages should

be taken off the table. (See Pl. Br. at 8-9 (“[I]f the Court believes that the complaint is

asking for monetary damages, then the plaintiff asks for leave to amend to make clear

what the plaintiff believes is the gravamen of this case—equitable relief as only this

15
Court can grant.”).) What is more, during the motion hearing, Reilly’s counsel

reiterated that Reilly does not seek monetary relief in the present action. 9

This Court sees no reason to rule on the appropriateness of a claim that Plaintiff

apparently no longer wishes to make. Consequently, insofar as Count I of Reilly’s

Amended Complaint requests monetary relief, Defendants’ motion to dismiss that claim

is deemed conceded and is therefore granted. See, e.g., Ali v. D.C. Court Servs., 538 F.

Supp. 2d 157, 161 (D.D.C. 2008) (court will dismiss claims that the plaintiff concedes).

2. Exhaustion Of Administrative Remedies

Defendants further maintain that, insofar as Reilly’s improper discharge claim

encompasses a request for equitable relief in the form of an “award” of “constructive

service from the time [Reilly] was improperly removed from the promotion list” and

“restoration of date of rank and lineal precedence,” as well as “any other emoluments to

which [Reilly] was entitled as a result of [his] improper removal from the promotion

list” (Am. Compl. at 7), Reilly has failed to comply with the applicable statutory

exhaustion requirement, and therefore the Court lacks jurisdiction to consider Reilly’s

claim. (Def. Br. at 16-18.)

To be sure, it is a basic tenet of administrative law that parties are required to

exhaust any available administrative remedies before seeking relief in the federal

courts. Hettinga v. U.S., 560 F.3d 498, 502-3 (D.C. Cir. 2009) (citing McCarthy v.

Madigan, 503 U.S. 140, 144-45 (1992)). The law in this Circuit, however, recognizes

that the term “exhaustion” as used in the administrative law context may refer to either

9
See 6/12/2013 Motion Hearing Transcript at 9:13-16:
THE COURT: So can you tell me what relief is being sought here?
MR. SARAN: Well, it is obviously not monetarily [sic].

16
one of two distinct legal concepts. First, it may refer to “jurisdictional exhaustion,”

which arises when a statute requires a specific type of exhaustion before the federal

courts may exercise jurisdiction over a claim implicating that statute. Avocados Plus

Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004). For a reviewing court to find a

jurisdictional exhaustion requirement, the statute must contain “sweeping and direct

statutory language indicating there is no federal jurisdiction prior to exhaustion.” Id. at

1248 (internal quotation marks and citations omitted). Because jurisdictional

exhaustion requirements are an exercise of Congress’s power to limit the jurisdiction of

the federal courts, they are mandatory and courts may not waive them. Id. at 1247.

Second, the term “exhaustion” may also refer to “non-jurisdictional” or “prudential”

exhaustion, which is a “judicially created doctrine requiring parties who seek to

challenge agency action to exhaust available administrative remedies before bringing

their case to court.” Id. This doctrine “serves the twin purposes of protecting

administrative agency authority and promoting judicial efficiency,” McCarthy, 503 U.S.

at 145, and is governed by “sound judicial discretion,” id. at 144.

Defendants in the instant case invoke only the “jurisdictional” form of

exhaustion in their motion to dismiss. Specifically, Defendants point to 10 U.S.C.

§ 14502(g), a statutory provision that concerns a “special” selection board (“SSB”) that

the Secretary may opt to convene when, as a result of administrative error or otherwise,

a promotion board does not select an eligible officer for promotion. (Def. Br. at 16.) 10

10
Section 14502(a)(1) of Title 10 provides that “[i]n the case of an officer . . . who the Secretary . . .
determines was not considered for selection for promotion . . . because of administrative error . . . the
Secretary concerned shall convene a special selection board under this subsection to determine whether
such officer or former officer should be recommended for promotion.” See also 10 U.S.C.
§ 14502(b)(1) (giving the Secretary authority to convene a special selection board for officers
considered for promotion but not selected if “the action of the selection board that considered the

17
As concerns such special selection boards, section 14502(g) provides:

No official or court of the United States shall have power or jurisdiction—

(1) over any claim based in any way on the failure of an officer or
former officer of the armed forces to be selected for promotion by a
selection board convened under chapter 1403 of this title until—

(A) the claim has been referred to a special selection board by
the Secretary concerned and acted upon by that board; or

(B) the claim has been rejected by the Secretary without
consideration by a special selection board; or

(2) to grant any relief on such a claim unless the officer or former
officer has been selected for promotion by a special selection board
convened under this section to consider the officer’s claim.

10 U.S.C. § 14502(g). The statute goes on, at 10 U.S.C. § 14502(h), to address the

scope of the authorized judicial review:

(1) A court of the United States may review a determination by the
Secretary concerned . . . not to convene a special selection board. If a
court finds the determination to be arbitrary or capricious, not based
on substantial evidence, or otherwise contrary to law, it shall remand
the case to the Secretary concerned, who shall provide for
consideration of the officer or former officer by a special selection
board under this section.

(2) If a court finds that the action of a special selection board which
considers an officer or former officer was contrary to law or involved
material error of fact or material administrative error, it shall remand
the case to the Secretary concerned, who shall provide the officer or
former officer reconsideration by a new special selection board.

10 U.S.C. § 14502(h).

By their plain terms, the provisions of §§ 14502(g) and (h) together establish a

jurisdictional exhaustion requirement that must be met before a military officer can

bring a claim in federal court that relates to a selection board’s decision not to select

officer or former officer was contrary to law” or “the selection board did not have before it for its
consideration material information”).

18
him or her for promotion. That is, before a claim that is “based in any way on the

failure of an officer or former officer of the armed forces to be selected for promotion

by a selection board” can make its way into federal court, the relevant Secretary must

either refer it to an SSB, or the relevant Secretary must reject it without referral to an

SSB. 10 U.S.C. § 14502(g)(1)(A), (B). In either case, if the officer does not receive

the relief he seeks, he may bring to federal court either a challenge to the Secretary’s

decision not to convene an SSB, or a challenge to the decision of the SSB itself.

Thereafter, if the court finds that the Secretary’s decision not to convene an SSB, or the

action of an SSB, “was contrary to law or involved material error of fact or material

administrative error, it shall remand the case to the Secretary concerned, who shall

provide the officer or former officer” with consideration by an SSB (if no such board

originally considered the claim) or reconsideration by a new SSB (if the challenge is to

the SSB’s determination). 10 U.S.C. § 14502(h)(1), (2). Thus, it is clear beyond cavil

that a plaintiff must seek the decision of an SSB before bringing a non-selection claim

to federal court. See, e.g., Millican v. U.S., No. 05-1330C, 2006 WL 5640829, at *15 n.

13 (Fed. Cl. August 24, 2006); see also Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C.

2002) (noting that the purpose of a statutory exhaustion requirement is “to provide the

agency with notice and an opportunity to rectify any wrong through the conciliation

process or through administrative relief”).

Significantly, when evaluating the exhaustion requirements of § 14502, courts

have consistently drawn a distinction between an officer’s claim based on a failure to

be selected for promotion, and situations where an officer’s name was removed from a

promotion list after the officer had already been selected. In the Millican case, for

19
example, the Court of Federal Claims considered the claim of a plaintiff (Major

Millican), an Air Force officer, who—like Reilly—had been selected for promotion and

subsequently had his name removed from the relevant promotion list. Major Millican

had also been denied selection for promotion a second time, and subsequently forced to

retire pursuant to 10 U.S.C. § 14505. Millican, 2006 WL 5640829 at *2. After

unsuccessfully petitioning the Air Force Board of Corrections for Military Records to

set aside both his removal from the selection list and his subsequent denial of selection,

Major Millican appealed to the Court of Federal Claims. Id. He then brought a motion

seeking to remove his case to the U.S. District Court for the District of Columbia. Id.

at *5. In opposing the motion, Defendants argued in part that the district court lacked

jurisdiction over Major Millican’s claims based on § 14502.

The court disagreed, noting that “[t]he record here is clear that in June 1999,

Major Millican was, in fact, selected for promotion by the Air Force reserve’s selection

board.” Id. at *15 (emphasis added). And “because plaintiff was chosen for

promotion,” id. (emphasis in original), the court reasoned that “it would defy common

sense to penalize him for a lack of review by an SSB[,]” id. (citing Barnes v. U.S., 66

Fed. Cl. 497, 507 (Fed. Cl. 2005)). 11 The court therefore concluded that the district

court could properly exercise jurisdiction over a claim based on Major Millican’s

removal from the promotion list. Id. at *16.

In the instant case, Defendants do not address the question of whether § 14502

would bar a claim predicated on Reilly’s removal from the 2003 Major Promotion List.

11
The court in Millican did note that “a challenge to the Air Force’s October 2002 decision not to
select plaintiff for promotion does appear to be barred from judicial review, except to the extent that a
court may review the selection board’s decision not to convene an SSB to review that matter.” 2006
WL 5640829 at *15 n.13.

20
Instead, Defendants argue that, because Reilly’s claim is styled as one for “improper

discharge,” the only relevant action is the 2006 Promotion Board’s denial of selection

for promotion (Reilly’s second promotion review), which was the proximate cause of

Reilly’s mandatory separation pursuant to 10 U.S.C. § 14505. (Def. Br. at 16-18.)

Defendants point to the language of the exhaustion statute, which applies to “any claim

based in any way on the failure of an officer or former officer of the armed forces to be

selected for promotion,” and maintains that this statutory provision should be construed

broadly to apply to Reilly’s improper discharge claim here. (Defendant’s Reply Brief

(ECF No. 12) at 4.)

In response, Reilly argues that § 14502 does not apply to his case because it

applies only to an officer’s failure to be selected. (Pl. Br. at 11-12.) Reilly contends

that his case does not fall within the ambit of the statute because he was in fact selected

for promotion in 2003—only to have his name removed from the selection list at the

eleventh hour. (Id.) Reilly further maintains that the outcome of the second promotion

consideration was a foregone conclusion in light of the initial removal (Pl. Br. at 12-

13), and that the separation was a mandatory follow-on from his second failure of

promotion, therefore the operative action for the purpose of his alleged improper

discharge was the initial selection and removal in 2003. (Id.)

The crux of the question before the Court with respect to jurisdictional

exhaustion is whether Reilly’s improper discharge claim is, in fact, “based” upon the

fact that he was not selected for promotion in 2006. The Court approaches this issue

mindful of the fact that “jurisdiction over a claim is controlled by the claim’s substance,

not the plaintiff’s characterization of the claim.” Williams v. U.S., 932 F. Supp. 357,

21
362 (D.D.C. 1996). Here, although Reilly has characterized his claim as one for

“improper discharge,” which would at first glance appear to implicate his 2006 denial

of selection, the complaint’s allegations are not at all focused on the 2006 denial of

selection; rather, Reilly trains his aim at the chain of events that led to his removal from

the 2003 Major Promotion List. Indeed, the indisputable gravamen of Reilly’s

complaint is the allegation that, in 2004, “the Secretary of the Navy erroneously

reported to the [Secretary of Defense] that Plaintiff had not been recommended for

promotion by the [CMC].” (Am. Compl. ¶ 13 (emphasis in original).) This mistake,

according to the Complaint, “directly caused” Reilly’s eventual mandatory separation

(id. ¶ 15), and it is this mistake—and only this mistake—that Reilly seeks to correct

through this action.

In the Court’s view, then, the Amended Complaint is not “based” on the fact that

Reilly was not selected for promotion in 2006, and consequently, Reilly’s complaint

does not implicate the exhaustion provisions of § 14502. Put differently, for the

purpose of § 14502, Reilly is not challenging his “failure to be selected” in 2006, but

rather the circumstances surrounding the removal of his name from the 2003 Major

Promotion List in June of 2004. Consequently, the Court finds that Reilly was not

required to request that an SSB consider his improper discharge claim—which, in

substance, is really an improper removal claim—before bringing that claim to federal

court. 12

12
The fact that Reilly’s improper discharge claim is not subject to the jurisdictional exhaustion
requirement of § 14502 does not resolve the issue of whether Reilly has adequately complied with any
non-jurisdictional exhaustion requirements. See Avocados Plus, 370 F.3d at 1248 (“[T]he existence of
an administrative remedy automatically triggers a non-jurisdictional exhaustion inquiry.”). The
prudential form of exhaustion, which is governed by “sound judicial discretion,” Hettinga, 560 F.3d at
503, generally serves three functions: “giving agencies the opportunity to correct their own errors,
affording parties and courts the benefits of agencies’ expertise, [and] compiling a record adequate for

22
 B. Defendants’ Argument That Reilly’s Improper Discharge Claim Is
Nonjusticiable and Unreviewable

Defendants also assert that, apart from the issue of exhaustion, the Court may not

adjudicate Reilly’s improper discharge claim because Reilly’s claim implicates a

“quintessentially nonjusticiable military personnel decision.” (Def. Br. at 19.)

Defendants press two arguments in support of this position: first, that Reilly’s claim

essentially seeks his “retroactive promotion,” which is beyond the power of the Court to

grant and therefore nonjusticiable, id.; and second, that Reilly’s claim implicates the

discretionary decision-making of the President and other executive branch officers, and

therefore even if it is theoretically jusiticable, it is not reviewable under the APA or any

other statute, id. at 20-21.

The justiciability of a claim is not a question of subject matter jurisdiction, but

rather of the court’s competence to address a particular claim. See Oryszak v. Sullivan,

576 F.3d 522, 526 (D.C. Cir. 2009) (“That a plaintiff makes a claim that is not

justiciable because committed to executive discretion does not mean the court lacks

subject matter jurisdiction over his case[.]”). A court’s inquiry into the justiciability of

a particular claim turns “upon the inappropriateness of the subject matter for judicial

consideration,” which, in turn, requires a determination of “whether the duty asserted

can be judicially identified and its breach judicially determined, and whether protection

for the right asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198

judicial review[.]” Marine Mammal Conservancy, Inc. v. Dep’t of Agric., 134 F.3d 409, 412 (D.C. Cir.
1998). Here, Reilly petitioned the BCNR, which considered the claim at issue and generated a
reviewable administrative record, and this has been the held to be the proper course of administrative
action for “a plaintiff who seeks relief from the military’s failure to promote her” in other cases. See,
e.g., Lewis v. Rumsfeld, 154 F. Supp. 2d. 56, 60-61 (D.D.C. 2001). Furthermore, Defendants do not
identify any additional administrative remedies available to Reilly that might raise concerns about
whether the agency had a sufficient opportunity to address Reilly’s claim of error. Thus, the Court has
no reason to conclude that Reilly’s claim should trigger an inquiry into non-jurisdictional exhaustion.

23
(1962). Thus, “[e]ven where a court possesses jurisdiction to hear a claim, it may not

do so in cases where the claim presents a nonjusticiable controversy—i.e., the claim is

such that the court lacks ‘ability to supply relief.’” Adkins v. United States, 68 F.3d

1317, 1322 (Fed. Cir. 1995) (quoting Murphy v. United States, 993 F.2d 871, 872 (Fed.

Cir. 1993)).

As this standard pertains to the instant justiciability argument, it is critical to

note that “[t]he Constitution vests ‘the complex, subtle, and professional decisions as to

the composition, training, equipping, and control of a military force’ exclusively in the

legislative and executive branches.” Kreis v. Sec’y of the Air Force, 866 F.2d 1508,

1511 (D.C. Cir. 1989) (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also

Orloff v. Willoughby, 345 U.S. 83, 94 (1953) (“Orderly government requires that the

judiciary be as scrupulous not to interfere with legitimate Army matters as the Army

must be scrupulous not to intervene in judicial matters.”). Thus, the judiciary has

traditionally been extremely reluctant to involve itself in claims implicating military

decision-making. However, this exacting standard does not mean that the decisions of

military officials and agencies are completely beyond the scope of judicial review. For

example, as discussed above, section 14502 of Title 10 of the United States Code

specifically authorizes courts to review a military secretary’s decision not to convene a

special selection board. 10 U.S.C. § 14502(h). Similarly, federal courts have regularly

exercised APA jurisdiction over appeals from decisions of military records correction

boards (such as the BCNR) where those challenges implicate the selection or

constitution of the board members or the procedures the board employed in rendering a

decision. See, e.g., Barnes v. U.S., 473 F.3d 1356, 1361 (Fed. Cir. 2007) (“[A]

24
challenge to the particular procedure followed in rendering a military decision may

present a justiciable controversy[.]”) (internal quotation marks omitted); Dysart v. U.S.,

369 F.3d 1303, 1315 (Fed. Cir. 2004) (“The Corrections Board statute . . . provides for

correction of military records . . . and for judicial review of the Board’s decision[.]”);

Chambers v. Green, 544 F. Supp. 2d 10, 13 (D.D.C. 2008) (“Decisions of a military

records correction board can be set aside if they are arbitrary, capricious, or not based

on substantial evidence[.]”); Levant v. Roche, 384 F. Supp. 2d 262, 267 (D.D.C. 2005)

(“[T]his Court does have jurisdiction to evaluate the reasonableness of [a military

record corrections board’s] decision not to take corrective action[.]”).

Notably, while courts do sometimes review the actions of military agencies, the

Court’s jurisdiction in this area is typically limited to challenges to procedures—it does

not extend to the merits of a promotion decision. See Adkins, 68 F.3d at 1323

(“[A]lthough the merits of a decision committed wholly to the discretion of the military

are not subject to judicial review, a challenge to the procedure followed in rendering a

military decision may present a justiciable controversy[.]”); see also Pettiford v.

Secretary of Navy, 774 F. Supp. 2d 173, 182 (D.D.C. 2011) (“[A] court’s role in

reviewing the decision of a military corrections board is to determine whether the

decision making process was deficient, not whether [the] decision was correct[.]”).

Accordingly, where a plaintiff challenges the merits of a military promotion

determination, courts consider such claims to be nonjusticiable. See, e.g., Fisher v.

United States, 402 F.3d 1167, 1180-81 (Fed. Cir. 2005) (en banc) (noting that the

question of “who should be allowed to serve on active duty, and in what capacity” is

25
generally nonjusticiable); Millican, 2006 WL 5640829, at *15 (“[I]t is clear beyond

cavil that the merits of [promotion] decisions are nonjusticiable[.]”).

Courts that have considered challenges similar to the claims Reilly makes here

have analyzed justiciability based primarily on the relief sought. See, e.g., Adkins, 68

F.3d at 1322; Daniels v. United States, 947 F. Supp. 2d 11, 19 (D.D.C. 2013). If the

plaintiff requests relief that implicates the merits of the decision whether or not he

should be promoted—such as, for example, claims for “retroactive promotion”—courts

uniformly have held that such a remedy, which in effect asks the court to order the

promotion of an individual military officer, goes to the merits of the promotion decision

and is thus nonjusticiable. See, e.g., Kreis, 866 F.2d at 1511; Millican v. U.S., 744 F.

Supp. 2d 296, 304 (D.D.C. 2010). Conversely, where plaintiffs have alleged that denial

of promotion resulted from a procedural error or statutory violation, courts have been

willing to exercise jurisdiction over the claims. See, e.g., Dilley v. Alexander, 627 F.2d

407 (D.C. Cir. 1980) (granting relief where an improperly constituted selection board

passed over officers for promotion); Lewis v. U.S., 458 F.3d 1372, 1377 (Fed. Cir.

2006) (noting that “the courts can review promotion decisions for violations [of] the

Constitution, statutes, or regulations” and thus reaching the merits of a claim that a

naval officer’s denial of promotion was based upon an erroneous interpretation of a

statute governing the qualifications for military physicians).

Reilly’s Amended Complaint is carefully crafted to avoid a specific request for

“retroactive promotion.” These words do not appear; instead, Reilly specifically asks

for “constructive service from the time he was improperly removed from the promotion

list,” “restoration of date of rank and lineal precedence,” and also “any other

26
emoluments to which he was entitled as a result of the improper removal from the

promotion list, from the date he should have been originally promoted in the calendar

year 2003 forward to the current date[.]” (Am. Compl. at 7.) Taken together, and in

light of operative laws that would have required Reilly’s promotion as a result of his

prior placement on the 2003 Major Promotion List but for his removal, the relief Reilly

seeks is substantively indistinguishable from a request for a retroactive promotion.

Thus, and to this extent, this Court concludes that Reilly’s core improper discharge

claim is nonjusticiable. See Piersall, 435 F.3d at 322 (claims for retroactive promotion

are nonjusticiable).

But even if Reilly’s complaint is construed in a more modest fashion (and thus in

a light more favorable to him) as one that seeks to redress merely his allegedly

mistaken removal from the 2003 Major Promotion List, and even assuming arguendo

that such a claim would be justiciable as a challenge to the procedures rather than the

merits of the action in question (which is by no means a given), this Court still

concludes that the authorities’ decision to remove Reilly from the 2003 Major

Promotion List—right or wrong—is not reviewable. While the federal courts have

specific statutory authority to address certain procedural aspects of the military

promotion system as explained above, there is no corresponding statutory authority

contemplating judicial review of the President’s decision to remove an officer’s name

from a promotion list. Thus, at best, Reilly must rely on the APA—which “erects a

‘presumption of judicial review’ at the behest of those adversely affected by agency

action[,]” Kreis, 866 F.2d at 1513 (quoting Abbott Laboratories v. Gardner, 387 U.S.

136, 140 (1967))—to provide a cause of action for his claim that the President

27
improperly or mistakenly removed his name from the 2003 Major Promotion List. Even

setting aside the fact that the President is not an “agency” for the purpose of the APA,

Dalton v. Specter, 511 U.S. 462, 469 (1994), it is well established that the APA does

not extend to claims challenging “agency action [that] is committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). “The Supreme Court has specified at least

two occasions in which that exclusion applies: [i]n those rare instances where statutes

are drawn in such broad terms that in a given case there is no law to apply, and when

the statute is drawn so that a court would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Sierra Club v. Jackson, 648 F.3d 848, 855

(D.C. Cir. 2011) (internal quotation marks and citations omitted). Agency actions in

these circumstances are unreviewable because “the courts have no legal norms pursuant

to which to evaluate the challenged action, and thus no concrete limitations to impose

on the agency’s exercise of discretion.” Sec’y of Labor v. Twentymile Coal Co., 456

F.3d 151, 156 (D.C. Cir. 2006).

The President made the decision to remove Reilly’s name from the promotion list

pursuant to 10 U.S.C. § 14310(a), which provides in full that “[t]he President may

remove the name of any officer from a promotion list at any time before the date on

which the officer is promoted.” This provision places no limitation on the President’s

authority to remove an officer from a promotion list prior to his or her promotion, and

provides no standard by which the Court can evaluate the President’s exercise of this

removal authority. See Nation v. Dalton, 107 F. Supp. 2d 37, 44 (D.D.C. 2000)

(construing identical predecessor statute to 10 U.S.C. § 14502(a)). Unlike the statutes

that govern a military reserve officer’s selection for promotion, which lay out specific

28
and detailed procedures for such selection as described above—or, for that matter, the

statutes and regulations that govern the BCNR’s review of a petition (discussed

below)—the statute governing removal of an officer from a promotion list provides no

framework or standard “against which to judge the agency’s exercise of discretion.”

Sierra Club, 648 F.3d at 855. And because such a standard is lacking, the removal

decision is committed to the sound discretion of the executive branch, and is therefore

unreviewable under the APA. See, e.g., Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 60

(D.D.C. 2001).

Undaunted, Reilly requests that the Court consider his improper discharge claim

in any event based on equitable estoppel principles. Reilly points to the fact that, while

his removal from the 2003 Major Promotion List was still under consideration in

January 2003, his MCR unit was activated for service in Iraq, and he twice served in

billets designated for majors during that period of deployment. (Pl. Br. at 15-16.) In

Reilly’s view, given that Defendants required him to serve in the role of a major during

active combat, Defendants should now be equitably estopped from arguing that the

CMC had, in fact, lost faith in Reilly as described in the Deputy Secretary of Defense’s

memorandum to the President. (Pl. Br. at 16 (“[I]t is the plaintiff’s contention that the

Government is equitably estopped from sending the plaintiff to a war to risk his life in

the very jobs that it subsequently asserted (and continues to assert) he is not qualified to

fill.”).) This creative estoppel contention fails to carry the day because it directly

relates to the merits of the military’s decision not to promote Reilly even as it deployed

him to perform the duties of a superior officer. Therefore, just like Reilly’s improper

29
discharge contention, the equitable estoppel claim is a nonjusticiable issue that the

Court cannot reach. See, e.g., Dysart, 369 F.3d at 1317; Adkins, 68 F.3d at 1323.

In sum, notwithstanding Reilly’s service in Iraq, it is beyond the power of this

Court to determine whether Reilly’s name was removed from the 2003 Major Promotion

List at the intentional behest of the Secretary of the Navy, or whether the Secretary

made a mistake and checked the wrong box before his recommendation was forwarded

to the President. Unfortunately for Reilly, this inquiry plainly implicates the

standardless removal process, such that if a mistake was made, it was the type of error

that was fully within the discretion of military officials—including the President—to

make. And because the Court cannot afford Reilly the relief he seeks as a result of his

alleged improper discharge, Count I of the complaint fails to state a claim upon which

relief can be granted and therefore must be dismissed.

C. Summary Judgment Under The APA (Count II)

The second count of Reilly’s Amended Complaint states that the BCNR violated

the APA in its consideration of his petition for correction of his military records.

Unlike the improper discharge claim, this claim is properly subject to judicial review

under the APA, as it attacks the procedures that the BCNR employed in evaluating

Reilly’s claim. See Piersall, 435 F.3d at 321-322 (collecting cases that have exercised

jurisdiction to review the decisions of boards for correction of military records “in light

of familiar principles of administrative law”) (internal quotations marks and citations

omitted). With respect to Reilly’s claim under the APA, Defendants argue that Reilly

has failed to meet his burden of showing that the BCNR’s decision to deny his petition

for correction of his military personnel records was “arbitrary, capricious, an abuse of

30
discretion, or otherwise not in accordance with law,” or that the decision was

“unsupported by substantial evidence.” 5 U.S.C. § 706(2). Reilly counters that the

BCNR’s denial meets that standard in three respects: first, because the BCNR relied on

the affidavits of Gillis and Spurlock, which Reilly views as double hearsay and

therefore insufficient to support the BCNR’s decision (Am. Compl. ¶ 17; Pl. Br. at 14-

15); second, because the BCNR relied on the “presumption of regularity” that attaches

to the actions of government officials, which Reilly views as inapplicable to this

“irregular” situation (Am. Compl. ¶ 18; Pl. Br. at 18); and third, because the BCNR

never sought an affidavit from the CMC, Gen. Michael W. Hagee, who authored the

memorandum originally recommending Reilly’s name remain on the 2003 Major

Promotion List (Pl. Br. at 14-15).

The Court concludes that Reilly’s criticisms are not sufficient either to

demonstrate that the BCNR acted arbitrarily or capriciously, or to establish that the

BCNR’s decision was not supported by substantial evidence. With respect to the

affidavits of Gillis and Spurlock, the regulations implementing the BCNR expressly

contemplate that, while the BCNR is not “an investigative body,” 32 C.F.R. 723.2(b), it

may consider both affidavits and advisory opinions as a part of the record before it. See

32 C.F.R. 723.6(c) (the record of proceedings “shall include . . . affidavits, papers, and

documents considered by the Board[.]”). The regulations also provide that where “the

facts have not been fully and fairly disclosed by the records or by the testimony and

other evidence before it, the Board may require the applicant or military authorities to

provide such further information as it may consider essential to a complete and

impartial determination of the facts and issues.” 32 C.F.R. 723.6(a)(2). Moreover, the

31
BCNR is not subject to the hearsay prohibitions in the Federal Rules of Evidence;

indeed, it is “abundantly clear that ‘administrative agencies may consider hearsay

evidence as long as it bear[s] satisfactory indicia of reliability.’” Honeywell Int’l, Inc.

v. EPA, 372 F.3d 441, 447 (D.C. Cir. 2004) (quoting EchoStar Communications Corp.

v. FCC, 292 F.3d 749, 753 (D.C. Cir. 2002)). Under these circumstances, the BCNR

was well within its statutory mandate and the applicable regulatory framework when it

requested an advisory opinion from JAM and relied on the affidavits of Gillis and

Spurlock.

Reilly’s argument that the BCNR erred in invoking the “presumption of

regularity” is also flawed. Indeed, the “presumption of regularity” that the BCNR

relied upon comes directly from that body’s implementing regulations, which state in

relevant part that

[t]he 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 their
official duties. Applicants have the burden of overcoming this
presumption.

32 C.F.R. 723.3(e)(2). Reilly maintains that the presumption cannot apply here,

because (in his view) there is an incongruity between the memorandum from the CMC

and the memorandum the Deputy Secretary of Defense provided to the President. (Pl.

Br. at 18-19.) But Reilly cites no authority in either his Amended Complaint or his

brief for the novel proposition that this presumption should apply only in certain

circumstances. (See, e.g., Am. Compl. ¶ 18.) Moreover, as Defendants point out, there

is no reason to think that the incongruity Reilly identifies must be resolved in his favor.

(Def. Br. at 25 n. 18.) While it is true that the CMC’s initial recommendation was that

32
Reilly remain on the 2003 Major Promotion List, the Secretary of the Navy initialed his

disapproval of that recommendation on the very paper on which the recommendation

was written. (AR at 12 (CMC Memo).) And the CMC’s original favorable

recommendation was also among the papers the Deputy Secretary of Defense forwarded

to the President. (AR at 13 (Wolfowitz Memo).) Reilly’s argument that the officials

who were responsible for removing his name from the promotion list were misled into

believing that the CMC had lost confidence in him necessarily assumes that those

officers were not aware of the CMC’s written recommendation (Am. Compl. ¶ 9), but

he does not, and cannot, contest the fact that both the Secretary of the Navy and the

President were in possession of that initial recommendation letter. Thus, it appears that

the relevant actors had all of the necessary information to make a determination about

whether to remove Reilly from 2003 Major Promotion List as in the ordinary course,

and there is no reason to doubt that the BCNR’s mandate to presume the regularity of

the actions of public officials was properly applied. Put another way, Reilly has not

provided any evidence, much less “substantial evidence,” of irregularity that would

render the BCNR’s reliance on the presumption arbitrary and capricious, and the BCNR

was well within the bounds of reasonableness when it concluded that Reilly had not met

his burden of overcoming that presumption.

Reilly’s third argument suggests that the BCNR acted arbitrarily and capriciously

in not ordering that the CMC produce an affidavit to explain his position on Reilly’s

promotion. This argument is flawed for at least two reasons. First, Reilly never

claims—and the record does not reflect—that he ever requested that the BCNR seek

such evidence, and “[i]t is a hard and fast rule of administrative law, rooted in simple

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fairness, that issues not raised before an agency are waived and will not be considered

by a court on review.” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C.

Cir. 2004). Second, and even more significant, is the fact that Reilly’s argument

faulting the BCNR for not obtaining the CMC’s affidavit is necessarily premised on the

conclusion that there was a potential mistake in the procedure related to his removal

from the promotion list that required further investigation. Reilly vigorously maintains

that, given the incongruity between the memo the CMC wrote in support of his

promotion and the President’s eventual decision to remove him from the promotion list,

he should be given the benefit of the doubt and the BCNR should have assumed that a

mistake was made, prompting them to seek out more information. (Pl. Br. at 14-15.)

But that argument essentially presumes irregularity in the prior proceedings—which is

precisely the opposite of the legal presumption that the BCNR is required to rely on.

See 32 C.F.R. 723.3(e).

Finally, even if this Court was convinced that the BCNR should have sought out

more information before denying Reilly’s petition, it is clear that the BCNR’s review

process was sufficiently thorough to render that decision rational and not arbitrary. See

Kreis, 406 F.3d at 686 (“The court need only determine whether the [Board’s] decision

making process was deficient, not whether [its] decision was correct. . . . 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.”) (internal quotation marks and

citations omitted); see also Frizelle, 111 F.3d at 176 (determinations of a military

agency need only be “rational” in light of the facts before it). When it received Reilly’s

petition, the BCNR exercised its considerable discretion to consult JAM and to review

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 the additional evidence that was gathered as a result of that consultation. That

evidence, which related directly to the question of the CMC’s position on Reilly’s

promotion, was internally consistent, and thus raised no further questions about the

possibility of error. The BCNR properly reviewed record evidence to make a

reasonable determination that there was no merit to Reilly’s petition, and that body is

entitled to deference regarding both its conclusion that the record was sufficient to

permit it to make a decision on Reilly’s petition and its ultimate determination. See

McDonough v. Mabus, 907 F. Supp. 2d 33, 44 (D.D.C. 2012) (“In the D.C. Circuit,

review of the actions of military corrections boards is unusually deferential.”) (internal

quotation marks omitted). This Court sees no arbitrariness, or any other violation of the

APA’s standards, in the BCNR’s decisions in this regard.

IV. CONCLUSION

For the reasons set forth above, the Court hereby GRANTS Defendants’ motion

to dismiss with respect to Count I of Reilly’s Amended Complaint; and enters summary

judgment in favor of Defendants with respect to Count II of Reilly’s Amended

Complaint. As a result, the case is DISMISSED in its entirety.

DATE: January 29, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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