Gilbert v. James

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HAROLD B. GILBERT, et al.,

Plaintiffs,
Civil Action No. 14-1364 (BAH)
v.
Chief Judge Beryl A. Howell
HEATHER A. WILSON, Secretary of the Air
Force,

Defendant.

MEMORANDUM OPINION

The plaintiffs, eleven former Air Force officers who retired or separated from active duty

between 1990 and 1998 (collectively, “the plaintiffs”), seek judicial review of the denial of their

applications for retrospective promotion by the Air Force Board for Correction of Military

Records (“AFBCMR” or “the Board”). The Board determined that each application was

submitted well after the applicable three-year limitations period, declined to waive that

limitations period, and dismissed the plaintiffs’ applications as untimely. The plaintiffs then

initiated this lawsuit against the Secretary of the Air Force, seeking a declaratory judgment that

the Board’s decision not to waive the applicable limitations period was in error. 1 After this

Court held that the Board’s decision not to waive the limitations period is subject to judicial

review, Gilbert v. James (“Gilbert I”), 134 F. Supp. 3d 42, 58 (D.D.C. 2015), the case was

stayed to allow the Board to conduct de novo reconsideration of the plaintiffs’ claims, Gilbert v.

James (“Gilbert II”), No. 14-cv-1364, 2016 WL 10721864, *3 (D.D.C. Jan. 4, 2016). The Board

again denied the plaintiffs’ applications as untimely, and the parties filed cross-motions for

1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendant the current Secretary
of the Air Force, Heather A. Wilson, for former Secretary Deborah Lee James.

1
summary judgment. Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 37; Pls.’ Cross-Mot.

Summ. J. (“Pls.’ Mot.”), ECF No. 38. For the reasons set out below, the Board’s decision was

neither arbitrary nor capricious and, accordingly, the defendant’s motion is granted while the

plaintiffs’ motion is denied.

I. BACKGROUND

The statutory framework and legislative history of the relevant statutes are laid out fully

in this Court’s previous Memorandum Opinion on the defendant’s motion to dismiss. See

Gilbert I, 134 F. Supp. 3d at 43–46. The salient points of that discussion are repeated here.

A. Statutory Framework

The Secretary of the Air Force (“the Secretary”) is authorized to convene promotion

selection boards to recommend active-duty officers for promotion. See 10 U.S.C. § 611.

Following an initial promotion decision, the Secretary is empowered to modify retrospectively a

current or former service member’s military record when necessary “to correct an error or

remove an injustice,” id. § 1552(a)(1), and is authorized to establish procedures governing such

corrections, id. § 1552(a)(3)(A). See also Air Force Instruction (“AFI”) 36-2603, Air Force

Board for Correction of Military Records, ¶¶ 1–2 (Mar. 5, 2012). Under these procedures, an

officer seeking modification of his or her military record must submit an “Application for

Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552,” called

a “DD Form 149,” to the Board. See AFI 36-2401, Correcting Officer and Enlisted Evaluation

Reports, Table 1, Row 3 (Feb. 20, 2004), ECF No. 16-1; see also AFI 36-2406, Officer and

Enlisted Evaluation Systems, Table 10.1, Row 3 (Nov. 8, 2016). Generally, such applications

must be filed “within three years after discovering the error or injustice,” although the Board

“may excuse a failure to file within three years after discovery if it finds it to be in the interest of

justice.” 10 U.S.C. § 1552(b); see also AFI 36-2406 ¶ 10.5.1; id. ¶ A2.4. To review these

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applications, the Secretary is authorized, under 10 U.S.C. § 628, to convene Special Selection

Boards (“SSBs”). SSBs consider petitioning officers’ records, together with “a sampling of the

records of those officers of the same competitive category,” and make determinations as to

whether each petitioning officer should be recommended for a retrospective promotion. 10

U.S.C. § 628(a)(2), (b)(2); Antonellis v. United States, 723 F.3d 1328, 1334 (Fed. Cir. 2013).

In 2001, Congress amended 10 U.S.C. § 628 to provide for judicial review of the

Secretary’s decisions to convene, or decline to convene, SSBs and authorized the services to

promulgate regulations addressing, inter alia, any “time limits applicable to the filing of an

application for [consideration by an SSB].” National Defense Authorization Act for Fiscal Year

2002, Pub. L. No. 107–107, § 503, 115 Stat. 1012, 1084 (2001); see also 10 U.S.C. § 628(g)–(j).

Pursuant to this newly granted authority, the Air Force promulgated an administrative limitations

period that parallels the statutory limitations period found in 10 U.S.C. § 1552(b). Under these

regulations, applications for record corrections must be submitted to the Board “within 3 years

after the error or injustice [giving rise to the application] was discovered, or, with due diligence,

should have been discovered.” AFI 36-2603 ¶ 3.5. “An application filed later is untimely and

may be denied by the Board on that basis,” id., but the Board “may excuse untimely filing in the

interest of justice,” id. ¶ 3.5.1.

B. The Plaintiffs’ Claims

While serving on active duty in the Air Force between 1990 and 1998, each of the

plaintiffs was considered by at least one promotion selection board and not selected for

promotion. Am. Compl. ¶¶ 15–25, ECF No. 11. During this period, the military services

provided certain equal opportunity instructions to various boards charged with making personnel

decisions, including promotions, early retirement, and selective retentions. Def.’s Mem. Supp.

Mot. Dismiss Pls.’ Am. Compl. (“Def.’s Mem. Mot. Dismiss”) at 3, ECF No. 13. In particular,

3
the Air Force provided personnel boards with a Memorandum of Instruction (“MOI”) that

included language directing the boards to be sensitive to race and gender when evaluating

officers. Id.; Am. Compl. ¶¶ 27–28. 2

In 2002, the Federal Circuit held that the Air Force’s use of this MOI to help guide the

selection of officers for involuntary termination pursuant to a 1993 reduction-in-force mandate

constituted a racial and gender classification subject to heightened scrutiny under the equal

protection guarantee of the Fifth Amendment. Berkley v. United States, 287 F.3d 1076, 1091

(Fed. Cir. 2002). 3 Since that time, and relying on Berkley, the Board has opined that the MOI

language addressing race and gender considerations was unconstitutional. Am. Compl. ¶¶ 30–

31; see also Ricks v. United States, 65 Fed. Cl. 826, 831 n.6 (2005) (noting that “[t]he

Government does not oppose the entry of a finding by this Court that the instructions were

unlawful for those reasons stated in Berkley”) (internal quotation marks, citation, and alteration

omitted). Following Berkley, many current and former service members sought reevaluation of

their military records without the equal opportunity MOI. See generally, e.g., Christian v.

United States, 337 F.3d 1338 (Fed. Cir. 2003) (Army selective early retirement board); Baker v.

United States, 127 F.3d 1081 (Fed. Cir. 1997) (Air Force selective early retirement board);

Paylor v. Winter, 600 F. Supp. 2d 117 (D.D.C. 2009) (Navy promotion selection board); Ricks,

2
The MOI read as follows: “Your evaluation of minority and women officers must clearly afford them fair
and equitable consideration. Equal opportunity for all officers is an essential element of our selection system. In
your evaluation of the records of minority and women officers, you should be particularly sensitive to the possibility
that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed
these officers at a disadvantage from a total career perspective. The board shall prepare for review by the Secretary
and Chief of Staff, a report of minority and women officer selections as compared to the selection rates for all
officers considered by the board.” Def.’s Mem. Mot. Dismiss at 3 n.1 (citing Ricks v. United States, 65 Fed. Cl. 826,
828 (2005)).
3
Although the Federal Circuit concluded that the constitutionality of the challenged MOI must be analyzed
under heightened scrutiny, the court expressly reserved judgment as to whether the MOI withstood that scrutiny and
“what effect, if any, deference to the military would have on the judicial application of strict scrutiny.” Berkley, 287
F.3d at 1091.

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65 Fed. Cl. 826 (Air Force promotion selection board); Christensen v. United States, 65 Fed. Cl.

625 (2005) (Air Force selective early retirement board); Alvin v. United States, 50 Fed. Cl. 295

(2001) (Air Force selective early retirement board).

For a number of years following Berkley, the Board routinely exercised its statutory and

regulatory authority to waive the applicable three-year limitations period and regularly convened

SSBs to review untimely applications submitted by officers who had been considered by

promotion boards operating under the equal opportunity MOI. Am. Compl. ¶¶ 37–38; Def.’s

Mem. Mot. Dismiss at 6. At the end of 2011, however, the Board changed course and consistently

declined to waive the three-year limitations period when the sole basis for relief asserted by the

petitioner was the Air Force’s use of the MOI. Def.’s Mem. Supp. Mot. Summ. J. (“Def.’s

Mem.”) at 2–3, ECF No. 37; Am. Compl. ¶ 41 (“It appears from the records that up to November

28, 2011 all Berkley cases were granted by the AFBCMR. After that date all Berkley cases were

denied.”) (emphasis in original). Taking into account the passage of nearly a decade since

Berkley, and citing its efforts to manage its caseload in conformity with statutory time constraints,

the Board concluded that continued waivers of the limitations period for Berkley cases were no

longer “in the interest of justice.” Administrative Record (“AR”) at 15, ECF No. 36-2. 4

Between May 2011 and December 2012, nearly ten years after Berkley and more than a

decade after each plaintiff had separated from the Air Force, each plaintiff filed a DD Form 149

“asking for a correction of their military record because of their unconstitutional treatment in

promotion selection.” Am. Compl. ¶ 34. Each plaintiff requested, pursuant to § 628(b), referral

of his record-correction request to an SSB so that the SSB could reassess his qualifications for

4
The Administrative Record has been produced in two documents with consecutive pagination. See AR
Vol. I, ECF No. 36-2; AR Vol. II, ECF No. 36-3. Pages 1 through 400 appear in Volume I, while pages 401 through
799 appear in Volume II. Although not all portions of the AR are cited here, the Court has reviewed the entire
Administrative Record in reaching this decision.

5
promotion and consider him for retrospective promotion without regard to his race and gender.

Id. ¶¶ 33–35; AR at 18, 85, 157, 233, 303, 376, 449, 516, 583, 654, 723.

The Board denied each plaintiff’s request as untimely. See AR at 16, 82, 153, 230, 300,

374, 446, 514, 581, 651, 721. While conceding that the plaintiffs were considered by promotion

selection boards operating under the equal opportunity MOI, Am. Compl. ¶ 36, the Board

declined to waive the statutory limitations period, citing the Board’s responsibility to manage its

caseload under statutory time constraints, its determination that the plaintiffs failed to engage in

due diligence in pursuing their applications, and its conclusion that the plaintiffs’ significant

delay in filing their applications rendered retrospective review of their records by an SSB

impractical. Id. ¶¶ 39, 45; see also, e.g., AR at 14–15. The plaintiffs then sought reconsideration

of these determinations, arguing for the first time that the Board acted arbitrarily and capriciously

by “refus[ing] to consider similar [ ] precedence” and by refusing to continue granting waivers of

the limitations period for petitioners raising Berkley claims. AR at 34. Notably, the plaintiffs

identified one case similar to theirs (the “comparator filer’s case”) in which a waiver was

granted, even though that application was filed after the earliest-filed application in this case. Id.

at 35; Pls.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n Def.’s Mot. Summ. J. (“Pls.’ Mem.”) at

3, ECF No. 38-2. After the Board summarily denied their requests for reconsideration, Am.

Compl. ¶ 46, AR at 41, the plaintiffs filed the instant action on August 11, 2014.

On September 22, 2015, this Court granted in part and denied in part the defendant’s

motion to dismiss for lack of subject-matter jurisdiction, concluding that the Board’s “decision

not to waive the limitations periods applicable to the plaintiffs’ applications to convene SSBs is

subject to judicial review under 10 U.S.C. § 628(g).” Gilbert I, 134 F. Supp. 3d at 58. This case

was stayed, at the defendant’s request and over the plaintiffs’ objections, on January 4, 2016, “to

6
allow for reconsideration de novo by the Air Force Board for Correction of Military records, of

the plaintiffs’ petitions,” Gilbert II, 2016 WL 10721864, at *3, which would enable the Board to

consider, for the first time, the plaintiffs’ argument that the Board had disregarded precedent

when changing its waiver policy, see id. at *2. On or about May 13, 2017, the plaintiffs received

word of the Board’s decisions on reconsideration, again denying relief for each plaintiff. See

Joint Status Report at 1, ECF No. 34. Regarding the precedent argument, the Board noted that

“the Board relies on the decision date, not the filing date, to set precedent for the Board’s later

decision” and that “once the decision was made to deny relief, the Board has consistently followed

that precedent.” AR at 7–8. The parties then filed the pending cross-motions for summary

judgment, which are now ripe for review.

II. LEGAL STANDARD

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when

the court finds, based on the pleadings, depositions, affidavits, and other factual materials in the

record, “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), (c); see also Tolan v. Cotton, 134 S. Ct.

1861, 1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “A

genuine issue of material fact exists if the evidence, ‘viewed in a light most favorable to the

nonmoving party,’ could support a reasonable jury’s verdict for the non-moving party.”

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013) (quoting McCready v.

Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)).

In APA cases such as this one, involving cross-motions for summary judgment, “the

district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” Am.

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

7
(collecting cases). Thus, this Court need not and ought not engage in lengthy fact finding, since

“[g]enerally speaking, district courts reviewing agency action under the APA’s arbitrary and

capricious standard do not resolve factual issues, but operate instead as appellate courts resolving

legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996);

see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting in

an APA case that “determining the facts is generally the agency’s responsibility, not ours”). As a

general rule, judicial review is limited to the administrative record, since “[i]t is black-letter

administrative law that in an [Administrative Procedure Act] case, a reviewing court should have

before it neither more nor less information than did the agency when it made its decision.” CTS

Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal quotation marks omitted; second

alteration in original); see also 5 U.S.C. § 706 (“[T]he court shall review the whole record or

those parts of it cited by a party . . . .”); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743

(1985) (noting that when applying arbitrary and capricious standard under the APA, “[t]he focal

point for judicial review should be the administrative record already in existence . . . .”) (quoting

Camp v. Pitts, 411 U.S. 138, 142 (1973)).

B. Administrative Procedure Act

Under the APA, a reviewing court must set aside a challenged agency action that is found

to be, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law,” 5 U.S.C. § 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or

short of statutory right,” id. § 706(2)(C); or “without observance of procedure required by law,”

id. § 706(2)(D); see also Otis Elevator Co. v. Sec’y of Labor, 762 F.3d 116, 120–21 (D.C. Cir.

2014) (citing Fabi Constr. Co. v. Sec’y of Labor, 370 F.3d 29, 33 (D.C. Cir. 2004)). The

arbitrary or capricious provision, under subsection 706(2)(A), “is a catchall, picking up

administrative misconduct not covered by the other more specific paragraphs” of the APA.

8
Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. (“ADPSO”),

745 F.2d 677, 683 (D.C. Cir. 1984) (Scalia, J.).

To pass arbitrary and capricious muster, “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.

(“State Farm”), 463 U.S. 29, 43 (1983) (internal quotation marks omitted). As the D.C. Circuit

has explained, a party challenging an agency action as arbitrary and capricious “must show the

agency action is not a product of reasoned decisionmaking.” Van Hollen, Jr. v. FEC, 811 F.3d

486, 495 (D.C. Cir. 2016). “This is ‘a heavy burden,’ since State Farm entails a ‘very deferential

scope of review’ that forbids a court from ‘substitut[ing] its judgment for that of the agency.’”

Id. (quoting Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 714 (D.C. Cir.

2000)); see also Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127,

1135 (D.C. Cir. 2014) (same); Judulang v. Holder, 565 U.S. 42, 52–53 (2011) (same).

Particularly when “an agency has acted in an area in which it has ‘special expertise,’ the court

must be particularly deferential to [the agency’s] determinations.” Sara Lee Corp. v. Am. Bakers

Ass’n Ret. Plan, 512 F. Supp. 2d 32, 37 (D.D.C. 2007) (quoting Bldg. & Constr. Trades Dep’t,

AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988)). That said, “courts retain a role, and

an important one, in ensuring that agencies have engaged in reasoned decisionmaking.”

Judulang, 565 U.S. at 53. Simply put, “the agency must explain why it decided to act as it did.”

Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).

The D.C. Circuit has summarized the circumstances under which an agency action would

normally be “arbitrary and capricious” to include “if the agency has relied on factors which

Congress has not intended it to consider, entirely failed to consider an important aspect of the

9
problem, offered an explanation for its decision that runs counter to the 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.” Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 209 (D.C. Cir. 2015)

(quoting State Farm, 463 U.S. at 43). Thus, when an agency “has failed to provide a reasoned

explanation, or where the record belies the agency’s conclusion, [the court] must undo its

action.” Cty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting

BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999)); see also Select Specialty Hosp.-

Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (noting that when “an agency’s

failure to state its reasoning or to adopt an intelligible decisional standard is [ ] glaring [ ] we can

declare with confidence that the agency action was arbitrary and capricious”) (quoting

Checkosky v. SEC, 23 F.3d 452, 463 (D.C. Cir. 1994)); Amerijet Int’l, Inc. v. Pistole, 753 F.3d

1343, 1350 (D.C. Cir. 2014) (“[A] fundamental requirement of administrative law is that an

agency set forth its reasons for decision; an agency’s failure to do so constitutes arbitrary and

capricious agency action.”) (internal quotation marks omitted). “[C]onclusory statements will not

do; an agency’s statement must be one of reasoning.” Amerijet Int’l, 753 F.3d at 1350 (internal

quotation marks omitted; emphasis in original).

C. Judicial Review of the Decision Not to Convene an SSB

Congress has provided explicit instructions on the scope of judicial review applicable to

challenges, such as the instant one, to a determination by the Secretary of a military department

declining to convene an SSB. Under the standard adopted in 10 U.S.C. § 628(g), which “largely

echoes” the APA’s arbitrary and capricious standard, Homer v. Roche, 226 F. Supp. 2d 222, 225

(D.D.C. 2002), the court may set aside the Secretary’s determination not to convene an SSB only

if the court finds the determination to be (1) “arbitrary or capricious;” (2) “not based on

substantial evidence;” (3) “a result of material error of fact or material administrative error;” or

10
(4) “otherwise contrary to law.” 10 U.S.C. § 628(g)(1)(A); see also Roberts v. United States,

741 F.3d 152, 158 (D.C. Cir. 2014). This standard is applied “in an ‘unusually deferential’

manner because it relates to the personnel decisions of the military.” Paylor, 600 F. Supp. 2d at

124 (quoting Miller v. Dep’t of Navy, 476 F.3d 936, 938 (D.C. Cir. 2007)); 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.”).

Adjudication of these claims thus “requires the district court to determine only whether

the Secretary’s decision making process was deficient, not whether h[er] decision was correct.”

Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989). To satisfy this “modest

scrutiny,” the Board “must give a reason that a court can measure against the arbitrary or

capricious standard of the APA.” Roberts, 741 F.3d at 158 (quoting Kreis, 866 F.2d at 1514–15)

(internal quotation marks and alterations omitted). Under this deferential standard, “[p]erhaps

only the most egregious decisions may be prevented,” but “[e]ven if that is all the judiciary can

accomplish, in reconciling the needs of military management with Congress’s mandate for

judicial review, then do it we must.” Kreis, 866 F.2d at 1515.

III. DISCUSSION

In this case, the plaintiffs aver that “the Board’s de novo determinations were an abuse of

discretion and arbitrary and capricious” and that, even if the plaintiffs’ claims were untimely,

“stare decisis dictates granting a waiver.” Pls.’ Mem. at 3–4 (capitalization omitted).

Specifically, the plaintiffs claim that the Board improperly relied “on the publicity surrounding

the Berkley case as a reason that Plaintiffs should have been aware of the issue in their promotion

boards” and then “fail[ed] to address the precedent of eight years of granting waivers” of the

11
limitations period. Id. For the reasons that follow, the Board adequately explained its decision

to deny the plaintiffs’ claims as untimely and did not arbitrarily or capriciously ignore precedent

in declining to waive the limitations period in this case.

A. The Board Articulated a Reasonable Explanation for Denying the Plaintiffs’
Claims as Untimely

The plaintiffs claim that the Board acted arbitrarily and capriciously in denying the

plaintiffs’ applications as untimely. Although the plaintiffs’ nonselections for promotion

occurred between 1990 and 1998, the plaintiffs aver that they first learned about the improper

MOI informally, “from word of mouth,” between November 2010 and December 2012. Am.

Compl. ¶¶ 33, 45; see also AR at 17–19, 83–86, 155–58, 231–36, 301–04, 375–77, 448–50, 515–

17, 582–84, 653–57, 723. Thus, the plaintiffs claim, their applications—filed between May 2011

and December 2012, Am. Compl. ¶ 34—were timely filed “within three years after discovering

the error or injustice.” 10 U.S.C. § 1552(b); Pls.’ Mem. at 2. In response, the defendant argues

that given the “highly publicized” nature of the Berkley decision, “the Board reasonably

determined that plaintiffs should have discovered the alleged error or injustice, the improper

memorandum of instruction applicable at the time, more than three years before plaintiffs filed

their applications with the Board.” Def.’s Opp’n Pls.’ Cross-Mot. Summ. J. & Reply Supp.

Def.’s Mot. Summ. J. (“Def.’s Opp’n”) at 2, ECF No. 39.

In this analysis, “the district court [is required] to determine only whether the Secretary’s

decision making process was deficient, not whether h[er] decision was correct.” Kreis, 866 F.2d

at 1511. No deficiency is present here. The Board’s reasoning largely rested on the “highly

publicized” Berkley settlement nearly ten years before the plaintiffs’ applications were filed,

which led the Board to conclude that “a reasonable date of discovery was more than three years

prior to receipt of the application.” AR at 7; see also id. at 14–15. The defendant correctly notes

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that after Berkley, the military services were involved in numerous lawsuits challenging the equal

opportunity instruction. Several of these cases involved the Air Force and promotion selection

boards. For example, the plaintiff in Ricks v. United States, 65 Fed. Cl. 826 (2005), was

unsuccessfully considered for promotion by Air Force promotion selection boards in 1992 and

1993—the same years that plaintiffs Gilbert, Hooper, Dorman, White, Phoebus, and Evans also

came before Air Force promotion selection boards. Id. at 828; see also AR at 11, 78, 149, 296,

509, 717. The 1992 and 1993 promotion boards both used the equal opportunity MOI, and in

Ricks, the court noted that this instruction “require[d] different treatment of officers under review

based on their race and gender.” Ricks, 65 Fed. Cl. at 828 n.2 (citing Berkley, 287 F.3d at 1084–

85). The application at issue in Ricks was filed in April 1997, a full fourteen years before the

earliest application in this case. Id. at 829; see also AR at 301 (White). While the issue in Ricks

was the “appropriate remedy to redress Plaintiff’s involuntary dismissal from the Air Force,”

Ricks, 65 Fed. Cl. at 827, and not whether a waiver of the limitations period was warranted, that

case undeniably involved a retired Air Force officer who was challenging his past nonselection

for promotion based on the equal opportunity MOI—just as the plaintiffs are attempting to do

here, nearly thirteen years after the decision in Ricks.

Similarly, in Baker v. United States, 127 F.3d 1081 (Fed. Cir. 1997), a class of retired Air

Force colonels challenged their selection for retirement by an Air Force selective early

retirement board (“SERB”) that also used the equal opportunity MOI. Id. at 1082. The specific

SERB at issue convened in January 1992, the same year that plaintiffs Gilbert, Hooper, White,

and Phoebus came before promotion selection boards. Id.; see also AR at 11, 78, 296, 509. The

Federal Circuit expressly noted that SERBs were using the same MOI as promotion selection

boards, acknowledging that “[a]t the time, the Air Force had previous experience with promotion

13
boards, whose tasks had been to decide which officers, among those eligible, would be promoted

to higher rank”; that “[t]he promotion boards also acted pursuant to [the MOI]”; and that “[f]or

the 1992 SERB, it was decided to use a charge that had been developed for use by promotion

boards.” Baker, 127 F.3d at 1083. The Baker plaintiffs filed suit in July 1994, some seventeen

years before the applications at issue in this case were filed. Id. at 1084. Still other cases discussed

Berkley’s applicability to personnel boards throughout the services, indicating that other similarly

situated plaintiffs were well aware of Berkley and its potential impact on their applications. See

generally, e.g., Christian, 337 F.3d 1338 (Army selective early retirement board); Paylor, 600 F.

Supp. 2d 117 (Navy promotion selection board); Christensen, 65 Fed. Cl. 625 (Air Force selective

early retirement board); Alvin, 50 Fed. Cl. 295 (Air Force selective early retirement board).

The plaintiffs are correct that they did not qualify for the Berkley class and thus would

not have received formal notice of their ability to join that class action. See Pls.’ Mem. at 4. 5

Nevertheless, given the publicity surrounding the Berkley decision and the number of cases

across the services involving different types of personnel boards, the Board did not act arbitrarily

or capriciously in determining that the plaintiffs should have discovered the error more than three

years before filing their applications. Rather, the Board explained in each case that “the Air

Force settled the Berkley case 10 years ago and the applicant has not demonstrated the error was

not discoverable,” especially in light of the numerous cases filed that raised the same or similar

issues. AR at 14. Indeed, “given the magnitude of the [Berkley] settlement agreement and its

far-reaching, resultant impact on such a large cadre of officers, it was widely publicized through

5
The Berkley class included “all commissioned officers of the United States Air Force who were considered
by and selected for involuntary separation from the United States Air Force by the [Fiscal Year 1993 Reduction in
Force] Board.” Berkley v. United States, 45 Fed. Cl. 224, 226 (1999). The plaintiffs in this action were considered
by promotion selection boards, not reduction-in-force boards, in various years ranging from 1990 to 1998. See Am.
Compl. ¶¶ 15–25.

14
a number of nonofficial websites on the internet.” Id. Contrary to the plaintiffs’ suggestion that

the Board had some obligation to notify service members of the Berkley settlement, see Pls.’

Mem. at 4, the Board was not required to expend its limited resources to identify and contact

every service member who may have been affected by the MOI. Nevertheless, as evidenced by

the volume of post-Berkley case law, the Berkley settlement was of such import that knowledge

of the MOI and its use in selection boards between 1990 and 1998 was prevalent across the

services. See generally, e.g., Christian, 337 F.3d 1338 (challenging use of the MOI before Army

selective early retirement board); Baker, 127 F.3d 1081 (same, before Air Force selective early

retirement board); Paylor, 600 F. Supp. 2d 117 (same, before Navy promotion selection board);

Ricks, 65 Fed. Cl. 826 (same, before Air Force promotion selection board); Christensen, 65 Fed.

Cl. 625 (same, before Air Force selective early retirement board); Alvin, 50 Fed. Cl. 295 (same,

before Air Force selective early retirement board). The Board’s reasoning is sound and provides

a “rational connection between the facts found and the choice made.” Burlington Truck Lines,

Inc. v. United States, 371 U.S. 156, 168 (1962).

B. The Board Did Not Act Arbitrarily or Capriciously by Denying Waivers for
the Plaintiffs’ Claims

The plaintiffs also allege that, if their claims are untimely, the Board acted arbitrarily and

capriciously by ignoring relevant precedent and denying waivers of the limitations period. Pls.’

Mem. at 2–3. Specifically, the plaintiffs claim that the Board consistently granted relief to

similarly situated applicants prior to 2012, Am. Compl. ¶¶ 37, 41, 44, and even granted a waiver

for a comparator filer who submitted his application after plaintiff White submitted his

application, id. ¶¶ 40, 48. Here, however, the Board explained why it was denying waivers to the

plaintiffs, why it was treating the plaintiffs’ cases differently from the comparator filer’s case,

and why it changed its approach to waivers in Berkley cases.

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 1. The Board Provided a Reasonable Explanation of Its Decision to Deny
Waivers in the Plaintiffs’ Cases

The Board’s decision not to waive the applicable limitations period amounts to a decision

to adhere rigidly to its own rules. Generally, “the agency’s strict construction of a general rule in

the face of waiver requests is insufficient evidence of an abuse of discretion.” Mountain Sols.,

Ltd. v. FCC, 197 F.3d 512, 517 (D.C. Cir. 1999). Rather, an agency’s “strict adherence to its

rules” is “permissible unless its reason for refusing to waive a rule is arbitrary, capricious, or ‘so

insubstantial as to render that denial an abuse of discretion.’” Westar Energy, Inc. v. FERC, 473

F.3d 1239, 1241 (D.C. Cir. 2007) (quoting Mountain Sols., 197 F.3d at 517); see also Universal

City Studios LLLP v. Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005) (“[W]e will disturb a denial

of waiver only when the agency’s reasons are so insubstantial as to render that denial an abuse of

discretion.”) (internal quotation marks omitted).

In this case, the Board articulated sound reasons for denying the plaintiffs’ requests for

waivers of the limitations period. The Board explained that the plaintiffs made “no showing that,

through due diligence, [they] would not have become aware of [the Berkley] actions years

earlier,” especially given the “widely publicized” Berkley settlement. AR at 14. In light of the

passage of time since Berkley, the Board continued, “correcting a member’s records has become

increasingly more difficult” and “[i]t has become nearly impossible to provide an appropriate

remedy since many members are provided supplemental promotion consideration and are

selected for promotion in a somewhat more liberal process where promotion quotas are not

applicable.” Id. at 15. Moreover, because no plaintiff offered evidence that he “would have

been a selectee had an appropriate MOI been employed during his selection board,” the Board

“d[id] not find a sufficient basis to waive the failure to timely file.” Id. Later, upon de novo

reconsideration of the plaintiffs’ applications, the Board reiterated that the plaintiffs “ha[d]

16
offered no plausible reason for the delay in filing the application[s]” and explained that “[t]he 3-

year timeliness standard ensures that the Board doesn’t spend time on aged cases at the expense

of those who have not slumbered on their rights.” Id. at 8. This explanation is “one of

reasoning,” Butte Cty., 613 F.3d at 194 (internal quotation marks omitted), that draws “a rational

connection between the facts found and the choice made,” State Farm, 463 U.S. at 43 (internal

quotation marks omitted).

2. The Board Did Not Arbitrarily or Capriciously Ignore Precedent

The plaintiffs focus their argument on the Board’s alleged “fail[ure] to address the

precedent of eight years of granting waivers” in substantially similar cases. Pls.’ Mem. at 3. The

D.C. Circuit has recognized that “[a] fundamental norm of administrative procedure requires an

agency to treat like cases alike. If the agency makes an exception in one case, then it must either

make an exception in a similar case or point to a relevant distinction between the two cases.”

Westar Energy, 473 F.3d at 1241; see also Indep. Petroleum Ass’n of Am. v. Babbitt, 92 F.3d

1248, 1258 (D.C. Cir. 1996) (“An agency must treat similar cases in a similar manner unless it

can provide a legitimate reason for failing to do so.”); Hall v. McLaughlin, 864 F.2d 868, 872

(D.C. Cir. 1989) (“Divergence from agency precedent demands an explanation.”). If an agency

“glosses over or swerves from prior precedents without discussion it may cross the line from the

tolerably terse to the intolerably mute.” Hall, 864 F.2d at 872 (internal quotation marks

omitted). Nevertheless, “this rule of reasoned decisionmaking has limits,” and an agency is not

required to “grapple with every last one of its precedents, no matter how distinguishable.”

Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010) (citing

LeMoyne-Owen College v. NLRB, 357 F.3d 55, 60 (D.C. Cir. 2004)). In addition, the agency

“may distinguish precedent simply by emphasizing the importance of considerations not

17
previously contemplated, and [ ] in so doing it need not refer to the cases being distinguished by

name.” Envtl. Action v. FERC, 996 F.2d 401, 411–12 (D.C. Cir. 1993).

In this case, the plaintiffs aver that the Board failed to distinguish relevant cases in which

it had “granted waivers in substantially similar cases for years” and failed to acknowledged that

it had “granted a waiver in a case filed after Plaintiff White filed his request.” Pls.’ Mem. at 3;

Pls.’ Reply Supp. Cross-Mot. Summ. J. (“Pls.’ Reply”) at 3, ECF No. 41. 6 Plaintiff White’s

application was filed on May 1, 2011, and a waiver was denied on February 21, 2012, while the

comparator filer’s application was filed on May 9, 2011, and a waiver was granted on November

28, 2011. AR at 35. The plaintiffs aver that the only difference between these two cases is that

“the Board looked at one later than the other.” Pls.’ Reply at 3. 7 In addressing this argument,

however, the Board explained that the filing date was not dispositive because “the Board relies

on the decision date, not the filing date, to set precedent for the Board’s later decision.” AR at

292. According to the Board, “once the decision was made to deny relief, the Board has

consistently followed that precedent.” Id. at 293 (emphasis in original). Indeed, the plaintiffs

acknowledge that “up to November 28, 2011, all Berkley cases were granted by the AFBCMR,”

while “[a]fter that date all Berkley cases were denied.” Am. Compl. ¶ 41; see also id. ¶ 44

(“[B]efore November 28, 2011, all cases were granted whereas after November 28, 2011, all

cases were denied.”). Although plaintiff White filed his application before the comparator filer,

his application was processed after the comparator filer’s application and therefore was decided

under the newer, more rigid approach to waivers. The Board detailed some of the myriad

6
The plaintiffs raised this argument for the first time in their requests for reconsideration, which the Board
summarily denied. See, e.g., AR at 34–39 (White request for reconsideration); id. at 41 (White summary denial).
Thus, the Board first addressed this precedent argument when it reconsidered the applications de novo while this
case was stayed.
7
The Board’s decision in the comparator filer’s case is not part of the Administrative Record.

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reasons why applications might not be processed in the same order in which they are filed: “how

well the application is written/supported, how quickly the advisory is received, staff and panel

availability, etc.” AR at 293. This is a reasoned and principled explanation for the Board’s

different treatment of the plaintiffs’ cases in comparison to the comparator filer’s case. 8

The plaintiffs’ argument primary support for their argument, Wilhelmus v. Geren, 796 F.

Supp. 2d 157 (D.D.C. 2011), bolsters this conclusion. Wilhelmus involved a cadet at the United

States Military Academy who was disenrolled after his repeated failure to pass the mandatory

Cadet Physical Fitness Test. See id. at 158–59. After the plaintiff’s separation, the Army

determined that he owed the government some $130,000 for failing to fulfill his contractual

obligations. Id. at 158. The Army Board for the Correction of Military Records (“Army Board”)

affirmed that determination. Id. On review, this Court determined that the Army Board had

“entirely failed to distinguish” the plaintiff’s case from an earlier case in which the Army

“recommended correction of the applicant’s record to disallow recoupment” of more than

$120,000 in fees owed by a former cadet who also failed the Fitness Test. Id. at 163. The

Army’s only responses to this prior case involving a similarly situated cadet were that “[t]he

ABCMR reviews each case individually and is presented before the Board based on its own

merit and evidence,” “[t]here are no cases that set the standards on how the Board should always

vote,” and “[t]he decision in [the earlier case] was not a unanimous decision to grant relief.” Id.

In this case, the defendant has not given such “simple conclusory statements,” id., to

explain its divergence from precedent. In Wilhelmus, the Army Board did not mention any

8
Even if the plaintiffs were correct that adherence to precedent required a waiver for any application filed
before the comparator filer’s application, that argument would apply only to plaintiff White. White’s application
was filed on May 1, 2011, which the plaintiffs aver was eight days before the comparator filer submitted his
application. AR at 301; Pls.’ Reply at 3. The other ten plaintiffs all filed their applications after May 9, 2011, when
the comparator filer submitted his application. See AR at 17, 83, 155, 231, 375, 448, 515, 582, 653, 723.

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change in its approach to the recoupment of fees for similarly situated cadets, did not attempt to

distinguish the facts or circumstances of the earlier case, and offered only generalized reasons for

its different treatment of the two cases. Id. at 163–64. Here, by contrast, the Board

acknowledged that the comparator filer’s case was “essentially the same” as the plaintiffs’ cases.

AR at 292. The Board nevertheless explained that it had reconsidered its approach to waivers in

Berkley cases, and that “once the decision was made to deny relief, the Board has consistently

followed that precedent.” Id. at 293 (emphasis in original). The plaintiffs have recognized that

consistency. See Am. Compl. ¶¶ 41, 44. Unlike the agency’s decision in Wilhelmus, the Board’s

“‘path may reasonably be discerned’ based on the administrative record it created,” Wilhelmus,

796 F. Supp. 2d at 163 (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S.

281, 286 (1974)) (internal citation omitted), and accordingly, the Board did not arbitrarily or

capriciously ignore precedent.

3. The Board Articulated a Reasonable Explanation for Reassessing Its
Approach to Waivers in Berkley Cases

Although agencies must treat like cases alike, they are also permitted to change course

when handling similar cases. See Rust v. Sullivan, 500 U.S. 173, 186 (1991) (“An agency is not

required to establish rules of conduct to last forever, but rather must be given ample latitude to

adapt its rules and policies to the demands of changing circumstances.”) (internal quotation

marks, citations, and alterations omitted). The “classic direction” for a court reviewing such an

agency action is that “‘an agency changing its course must supply a reasoned analysis indicating

that prior policies and standards are being deliberately changed, not casually ignored.’” Hall,

864 F.2d at 872 (quoting Greater Boston Television Corp v. FCC, 444 F.2d 841, 852 (D.C. Cir.

1970)). If the agency satisfies the court that it “has taken a hard look at the issues with the use of

reasons and standards, the court will uphold its findings, though of less than ideal clarity,” so

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long as “the agency’s path may reasonably be discerned.” Greater Boston Television, 444 F.2d

at 851.

The decision here not only distinguished this case from the comparator filer’s case but

also explained the Board’s reasons for modifying its approach to waivers in Berkley cases

generally. The Board acknowledged that it had, “in the past, gone to great lengths to provide

relief to those members affected by the improper MOI but not part of the Berkley class,”

including by waiving the three-year limitations period. AR at 14. “[R]ecent Congressional

mandates,” however, had “limited the Board’s latitude” to grant waivers by requiring the Board

to “process 90 percent of its cases within 10 months and to allow the processing of no case to

exceed the 18-month point.” Id. at 14–15. In addition, “correcting a member’s records has

become increasingly more difficult due to the passage of time” and “[i]t has become nearly

impossible to provide an appropriate remedy” given the different promotion considerations that

applied to different promotion boards. Id. at 15. Thus, the Board concluded in each of the

plaintiffs’ cases that “it would not be in the interest of justice to waive the untimeliness” present

in the plaintiffs’ cases. See id. at 16, 82, 153, 230, 300, 374, 446, 514, 581, 651, 721. Similar

reasoning was repeated in the Board’s decisions on reconsideration. See, e.g., id. at 8, 75, 146,

221, 293, 367, 440, 506, 573, 644, 714. These explanations amount to “a reasoned analysis for

the change,” State Farm, 463 U.S. at 42, and “are not so manifestly devoid of a factual basis as

to allow this court to second guess the agency,” Nat’l Ass’n of Broad. v. FCC, 740 F.2d 1190,

1212 (D.C. Cir. 1984).

The plaintiffs argued before the Board that these reasons, and in particular, the reliance

on congressional mandates, should be discounted because “[t]he Congressional mandate on

processing times has been in place for almost ten years” and “[t]he Air Force has had ample time

21
to add the resources necessary to fulfill the mandate.” AR at 35. While that may be so, courts

“will not second-guess a reasoned determination by an agency that the advantages of rigidity

outweigh the disadvantages in a given procedural circumstance.” Green Country Mobilephone,

Inc. v. FCC, 765 F.2d 235, 237 (D.C. Cir. 1985). The Board implemented a three-year

administrative limitations period in 2001 and, in its discretion, decided to grant waivers of that

limitations period for approximately a decade. At the end of 2011, the Board again exercised its

discretion and decided to enforce the limitations period rigidly, finding that the interest of justice

no longer justified waivers in these cases. In the face of the Board’s reasoned reconsideration of

its approach to waivers in Berkley cases, the plaintiffs have not shown that the denials of the

requested waivers were arbitrary, capricious, or an abuse of discretion. See Fla Inst. of Tech. v.

FCC, 952 F.2d 549, 554 (D.C. Cir. 1992) (noting that plaintiffs must convince the court that “the

Commission’s reasons for its decision were insubstantial, that it arbitrarily deviated from

precedent, or that its denial of the requested waiver was otherwise an abuse of discretion”).

IV. CONCLUSION

For the foregoing reasons, the defendant’s Motion for Summary Judgment is GRANTED

and the plaintiffs’ Cross-Motion for Summary Judgment is DENIED. An appropriate Order

accompanies this Memorandum Opinion.

Date: February 27, 2018

__________________________
BERYL A. HOWELL
Chief Judge

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