UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAJOR MICHAEL D. MORI, :
UNITED STATES MARINE CORPS, :
:
Plaintiff, : Civil Action No.: 07-2167 (RMU)
:
v. : Re Document Nos.: 9, 12
:
DEPARTMENT OF THE NAVY, :
:
Defendant. :
MEMORANDUM OPINION
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
GRANTING THE PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter comes before the court on the defendant’s motion for summary judgment and
the plaintiff’s cross-motion for summary judgment. The plaintiff, a Major in the Marine Corps,
was denied a promotion to the rank of Lieutenant Colonel by the United States Marine Corps
Lieutenant Colonel Selection Board. The plaintiff requested that the Secretary of the Navy
convene a Special Selection Board (“SSB”) to review the decision, but the Secretary denied his
request, concluding that the plaintiff had failed to provide evidence supporting his claim. The
plaintiff subsequently commenced this action under the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 551 et seq. The defendant has now moved for summary judgment, arguing that the
court should uphold the Secretary’s decision. The plaintiff has filed a cross-motion for summary
judgment requesting that the court set aside the Secretary’s decision. Because the Secretary
failed to articulate what standard of proof it applied to the plaintiff’s request for an SSB, the
court denies the defendant’s motion for summary judgment, grants the plaintiff’s cross-motion
for summary judgment and remands this case to allow the Secretary to explain its reasoning with
the requisite degree of specificity.
II. BACKGROUND
A. Factual History
In August 2003, the Marine Corps assigned the plaintiff to the Office of Military
Commissions to serve as defense counsel for detainees charged by the military commission
system in Guantanamo Bay, Cuba. Compl. ¶ 7. Two months later, the Marine Corps ordered the
plaintiff to represent David Hicks, the first detainee charged by the military commission system.
Id. ¶¶ 7-8. In an effort to fulfill his legal obligation and his ethical obligation to zealously
represent Hicks’s interests, the plaintiff mounted a challenge to the validity of the military
commission system, which the Supreme Court addressed in Rasul v. Rumsfeld, 542 U.S. 507
(2004). Id. ¶¶ 10-11. The plaintiff’s representation of Hicks and his efforts to challenge the
military commission system were widely covered in the media and in publications distributed to
Marine Corps officers. Id. ¶ 11.
In October 2005, a Marine Corps promotion board considered and denied the plaintiff for
a promotion to the rank of Lieutenant Colonel. Id. ¶ 12. On June 6, 2006, the plaintiff filed a
request with the Secretary of the Navy for an SSB, a board convened to consider the record of an
officer who alleges that he or she has been unfairly denied a promotion. Id. ¶¶ 31-32. In his
request, the plaintiff asserted that the promotion board members were biased against him because
he had “diligently and zealously performed the job the Marine Corps assigned [him] to do –
defend a suspected terrorist.” Admin. R. at 4. Moreover, the plaintiff expressed his belief that
2
the promotion board members, many of whom were involved in the war on terror, considered
him disloyal not only because he was defending a suspected terrorist, but also because he had
criticized the military commission process. Id. To support this claim, the plaintiff submitted
several news articles discussing his representation of Hicks, as well as an affidavit from an
officer stating that several colleagues had expressed their view that the plaintiff’s defense of
Hicks was inappropriate and disloyal. Id. at 25. The Commandant of the Marine Corps
submitted a memorandum to the Secretary recommending that the Secretary deny the plaintiff’s
request for an SSB, and on February 15, 2007, the Secretary denied the plaintiff’s request.
Compl. ¶¶ 33, 38.
B. Procedural History
The plaintiff commenced this action on November 30, 2007, claiming that the Secretary’s
denial of his request was arbitrary and capricious, not based on substantial evidence, materially
erroneous and otherwise contrary to law. Id. ¶ 43. The plaintiff asks the court to set aside the
Secretary’s denial of his request for an SSB and remand the case to the Secretary with an order
that the Secretary convene an SSB to review the plaintiff’s record. Id. at 9-10.
The defendant has moved for summary judgment, arguing that the court should uphold
the Secretary’s decision. See generally Def.’s Mot. for Summ. J. (“Def.’s Mot.”). The plaintiff
has filed a cross-motion for summary judgment. See generally Pl.’s Cross-Mot. for Summ. J. &
Opp’n to Def.’s Mot. (“Pl.’s Cross-Mot.”). As both motions are now ripe for adjudication, the
court turns to the applicable legal standards and the parties’ arguments.
3
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive
law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” is one whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on cross-motions for summary judgment, the court shall grant summary
judgment only if one of the parties is entitled to judgment as a matter of law upon material facts
that are not genuinely disputed. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
Justice, 658 F. Supp. 2d 217, 224 (D.D.C. 2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67
(2d Cir. 1975)). To prevail on a motion for summary judgment, the moving party must show that
the opposing party “fail[ed] to make a showing sufficient to establish the existence of an element
essential to that party’s case.” Celotex, 477 U.S. at 322. By pointing to the absence of evidence
proffered by the opposing party, a moving party may succeed on summary judgment. Id.
The opposing party may defeat summary judgment through factual representations made
in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.
4
1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338
(D.C. Cir. 2006).
B. Legal Standard for Judicial Review of Agency Actions
The APA entitles “a person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action . . . to judicial review thereof.” 5 U.S.C. § 702. Under
the APA, a reviewing court must set aside an agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Id. § 706; Tourus Records, Inc. v.
Drug Enforcement Admin., 259 F.3d 731, 736 (D.C. Cir. 2001). In making this inquiry, the
reviewing court “must consider whether the [agency’s] decision was based on a consideration of
the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 378 (1989) (internal quotations omitted). At a minimum, the agency
must have considered relevant data and articulated an explanation establishing a “rational
connection between the facts found and the choice made.” Bowen v. Am. Hosp. Ass’n, 476 U.S.
610, 626 (1986); Tourus Records, Inc., 259 F.3d at 736. An agency action usually is arbitrary or
capricious if
the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to evidence before the agency, or is
so implausible that it could not be ascribed to a difference in view or the product
of agency expertise.
Motor Veh. Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also
County of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (holding that “[w]here the
agency has failed to provide a reasoned explanation, or where the record belies the agency’s
conclusion, [the court] must undo its action”).
5
As the Supreme Court has explained, however, “the scope of review under the ‘arbitrary
and capricious’ standard is narrow and a court is not to substitute its judgment for that of the
agency.” Motor Veh. Mfrs. Ass’n, 463 U.S. at 43. Rather, the agency action under review is
“entitled to a presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.
402, 415 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
C. The Court Denies the Defendant’s Motion for Summary Judgment and
Grants the Plaintiff’s Cross-Motion for Summary Judgment
In their cross-motions for summary judgment, the parties dispute (1) the standard of
review that the court should apply when reviewing the Secretary’s decision; (2) whether the
Secretary applied the appropriate standard of proof when considering the plaintiff’s request;
(3) whether the Secretary’s decision to deny the plaintiff’s request was arbitrary and capricious;
and (4) whether the Secretary was required to investigate the plaintiff’s claims. See generally
Def.’s Mot.; Pl.’s Cross-Mot. The court’s consideration of the first two issues compels it to deny
the defendant’s motion for summary judgment and grant the plaintiff’s cross-motion for
summary judgment.
1. The Court Must Apply a Deferential Standard of Review to the Secretary’s Decision
The defendant contends that the standard for reviewing decisions under the APA is highly
deferential to the agency, even in non-military cases. Def.’s Mot. at 18. Moreover, the defendant
asserts that this deference is heightened in cases involving military decisions. Id. at 20. The
plaintiff, on the other hand, argues that such deference typically applies to judicial review of
“substantive personnel decisions,” and that when reviewing the process leading to the Secretary’s
decision, including the type and sufficiency of the evidence that the Secretary relied upon and the
6
standard of proof that the Secretary used, Congress has mandated a less deferential standard of
review requiring the court to assess whether the decision was supported by substantial evidence,
constituted material error or was contrary to law. Pl.’s Cross-Mot. at 9-10.
In reviewing a determination of the Secretary of a military department regarding the
promotion of an officer, the “court may set aside the Secretary’s determination only if [it] finds
the determination to be (i) arbitrary or capricious; (ii) not based on substantial evidence; (iii) a
result of material error of fact or material administrative error; or (iv) otherwise contrary to law.”
10 U.S.C. § 628(g)(1)(A). Decisions of military boards are reviewable by an “unusually
deferential” standard. Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see
also Miller v. Dep’t of the Navy, 476 F.3d 936, 938-39 (D.C. Cir. 2007) (stating that the court
should be “unusually deferential” when reviewing the Secretary of the Navy’s denial of a request
for an SSB). The court will not second-guess the merits of a military promotion or retention
decision as long as the process of reaching that decision was proper. Siemietkowski v. United
States, 86 Fed. Cl. 193, 198 (Fed. Cl. 2009) (citing Adkins v. United States, 68 F.3d 1317, 1323
(Fed. Cir. 1995)). In other words, the court must determine only whether the Secretary’s
decisionmaking process was deficient, not whether the decision itself was correct. Kreis, 866
F.2d at 1511; see also Gillan v. Winter, 474 F.3d 813, 819 (D.C. Cir. 2007) (concluding that the
Secretary’s decision was not arbitrary and capricious because there was a rational connection
between the fact found and the choice made); Mueller v. Winter, 485 F.3d 1191, 1200 (D.C. Cir.
2007) (determining that the Secretary’s refusal to convene an SSB was supported by substantial
evidence despite the fact that the opposing position was also reasonable); Homer v. Roche, 226 F.
Supp. 2d 222, 225 (D.D.C. 2002) (explaining that when conducting its inquiry under § 628, the
7
court should determine whether the explanation for the military’s decision was reasonable).
With this standard of review in mind, the court now examines the parties’ remaining arguments.
2. The Secretary Failed to Articulate What Evidentiary Standard He Applied to the
Plaintiff’s Request for an SSB
The plaintiff argues that the Secretary’s denial of his request for an SSB should be
reversed because the Secretary used an inappropriate standard of proof when evaluating his claim
that the promotion board’s decision not to promote him was contrary to law and materially
erroneous. Pl.’s Cross-Mot. at 13. The plaintiff recognizes that the statute contains no explicit
standard of proof that a party must satisfy to be entitled to an SSB. Id. Because the denial stated
that the plaintiff had failed to provide “convincing evidence” that the promotion board members
were unfairly biased against him, the plaintiff argues that the Secretary applied an unlawfully
high “clear and convincing evidence” standard when evaluating his request. Id. In addition, the
plaintiff asserts that this heightened standard was not clearly articulated and was inconsistent
with the standard applied in similar cases. Id. at 16-17. Finally, the plaintiff contends that the
clear and convincing standard effectively precludes service members from challenging decisions
to deny an SSB, because only direct evidence of what occurred during the promotion board
proceedings – which board members are not allowed to disclose – could satisfy this standard. Id.
at 14-15.
Like the plaintiff, the defendant recognizes that the governing statute is silent as to the
evidentiary standard that the Secretary should use to weigh requests for an SSB based on an
allegation that a promotion board acted contrary to law. Def.’s Opp’n to Pl.’s Cross-Mot. &
Reply in Supp. of Def.’s Mot. (“Def.’s Reply”) at 20. Yet, the defendant – while never clearly
8
articulating what standard of proof the Secretary ostensibly used to review the plaintiff’s request
– contends that the Secretary did not apply a “clear and convincing” standard of proof, and that,
in any event, the outcome would have been the same under even the lowest possible standard
because the plaintiff provided no evidence to support his claims. Def.’s Reply at 18.
Furthermore, the defendant refutes the plaintiff’s assertion that the Secretary made it impossible
for him to demonstrate his entitlement to an SSB, contending that he could have submitted
evidence from outside the deliberations showing that the board members had voiced a bias
against the plaintiff. Id. at 18-19.
The Secretary may convene a special selection board if he determines that the promotion
board’s decision was “contrary to law or involved material error of fact or material administrative
error.” 10 U.S.C. § 628(b)(1)(A). To obtain review by an SSB based on the “material error”
prong of the statute, a plaintiff must adduce evidence that the promotion board committed “[a]ny
error of fact or administrative/procedural error that is more likely than not to have deprived the
officer concerned of a fair and impartial consideration by the board.” Sec’y of the Navy
Instruction (“SECNAVINST”) § 1420.1B(e)(24)(3)(c) (emphasis added). Thus, as this Circuit
has recognized, it is clear that the “material error” prong of the standard requires proof by a
preponderance of the evidence. Miller, 476 F.3d at 939.
In contrast, the requisite standard of proof for an allegation that a promotion board’s
decision was “contrary to law” is not explicitly set forth in the statute, nor in the applicable
regulations or case law. Id. The Secretary’s regulations explain that “contrary to law” means
“[a]ny act of a promotion selection board that deprives the officer concerned of a constitutional
or statutory right.” SECNAVINST § 1420.1B(e)(24)(3)(b). This Circuit has cautioned that
9
regardless of what standard of proof the Secretary applies to an allegation that a promotion
board’s decision was “contrary to law,” the standard of proof that the Secretary applies “should
be . . . the result of a conscious (and articulated) decision by the Secretary.” Miller, 476 F.3d at
939.
In his request for an SSB, the plaintiff claimed both that the promotion board’s decision
was contrary to law and that it constituted material error. See Admin. R. at 3. The Secretary
rejected both of these claims, concluding that the plaintiff (1) “fail[ed] to provide convincing
evidence to support his claim,” (2) “[did] not provide evidence that the board deviated” from the
precept, and (3) “fail[ed] to provide evidence that he was not given fair and equitable
consideration.” Id. As the plaintiff correctly points out, however, the memorandum denying the
SSB request does not articulate the standard of proof that the Secretary used when reviewing the
evidence.1 See id.
Therefore, the court is unable to evaluate what standard of proof the Secretary applied; as
a consequence, it is also unable to determine whether the Secretary’s chosen standard was
appropriate or whether the Secretary properly applied that standard. Thus, on this incomplete
record, the court cannot determine whether the Secretary’s decision to deny the plaintiff’s request
for an SSB was arbitrary or capricious. See Miller, 476 F.3d at 939 (explaining that because the
regulation’s “contrary to law” standard does not contain an explicit standard of proof, the
Secretary must articulate the standard of proof used to evaluate the plaintiff’s claim that the
promotion board acted contrary to law); cf. Allentown Mack Sales & Serv., Inc., 522 U.S. at 374
1
The fact that the Secretary’s memorandum notes that the plaintiff failed to present “convincing”
evidence is insufficient, without more, for the court to conclude that the Secretary applied a
“clear and convincing” standard of proof.
10
(emphasizing the need for the court to determine that an agency applied the appropriate standard
of proof when assessing whether the agency “engaged in reasoned decisionmaking”); Bean
Dredging, LLC v. United States, 2010 WL 1189903, at *7 (D.D.C. Mar. 30, 2010) (remanding
the case because the agency failed to explain how it interpreted the applicable regulation); Poett
v. United States, 657 F. Supp. 2d 230, 242 (D.D.C. 2009) (determining that the court was unable
to review whether the agency’s decision was arbitrary and capricious because the administrative
record was insufficient); Homer, 226 F. Supp. 2d at 226 (concluding that because the Air Force
failed to provide an adequate explanation as to how it reached its decision, the court could not
find a rational connection between the facts found and the choice made).
Accordingly, the court must remand the case to the defendant. On remand, the Secretary
will be obligated to articulate the standard of proof applicable to the plaintiff’s claim that the
denial of his request for an SSB was contrary to law. See Miller, 476 F.3d at 939; Kreis, 866
F.2d at 1514-15 (holding that the Secretary “must give a reason that a court can measure . . .
against the ‘arbitrary or capricious’ standard of the APA”); see also Safe Extensions, Inc. v. Fed.
Aviation Admin., 509 F.3d 593, 599 (D.C. Cir. 2007) (explaining that “if the reviewing court
simply cannot evaluate the challenged agency action . . . the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation”) (quoting
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); accord Tourus Records, Inc., 259
F.3d at 737.
11
IV. CONCLUSION
For the foregoing reasons, the court denies the defendant’s motion for summary
judgment, grants the plaintiff’s cross-motion for summary judgment and remands the Secretary’s
decision to the defendant for further proceedings. An Order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 17th day of August, 2010.
RICARDO M. URBINA
United States District Judge
12