United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 1999 Decided December 14, 1999
No. 98-5568
Carolyn M. Grant,
Appellant
v.
United States Air Force, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02914)
Carol J. Banta argued the cause for the appellant.
Lisa Goldfluss, Assistant United States Attorney, argued
the cause for the appellees. Wilma A. Lewis, United States
Attorney, and R. Craig Lawrence, Assistant United States
Attorney, were on brief for the appellees.
Before: Sentelle, Henderson and Garland, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Plaintiff Caro-
lyn Grant (Grant) sought to enjoin the United States Air
Force (Air Force) from discharging her from the Air Force
Reserves. She claimed that, in nonselecting her for reenlist-
ment, the Air Force denied her due process and violated the
Administrative Procedure Act, 5 U.S.C. s 702. The district
court denied Grant's motion for a temporary restraining
order and granted summary judgment to the Air Force. For
the reasons set forth below, we affirm the district court.
I.
Grant had been a civilian Air Reserve Technician and an
enlisted member in the Communications Flight unit of the
459th Airlift Wing, Air Force Reserves, since 1980. Air
Force regulations required Grant to reenlist within six
months of December 7, 1997, the date of her expiration of
term of service (ETS).1 Grant signed a reenlistment contract
on June 4, 1997,2 three days before the six-month reenlist-
ment window opened. Although her unit commander, Lieu-
tenant Colonel Brad Buchanan, could have declared her ineli-
gible for reenlistment by nonselecting her before she signed
the reenlistment contract, see Air Force Instruction (AFI)
36-2612 s 3.5.3, once the reenlistment contract was properly
executed, Buchanan could not nonselect her. See id. s 2.4.
The Air Force attempted to void Grant's reenlistment
contract three times. First, on June 10, Major Ted Covert,
the 459th Airlift Wing Military Personnel Flight Commander,
concluded that Grant's reenlistment contract was invalid be-
cause she signed it prematurely. On August 8 Grant was
informed that Covert had "voided out" her reenlistment con-
__________
1 To be eligible for reenlistment an enlisted Air Force member
must be "within 6 months of current ETS." Air Force Instruction
(AFI) 36-2612 s 2.1.
2 All dates occurred in 1997 unless otherwise noted.
tract. See Complaint p 12. Grant immediately met with
Covert who informed her that her reenlistment contract had
been removed from her record and that Buchanan had made
the decision to void it. Under the applicable regulations,
however, neither Covert nor Buchanan was authorized to void
her reenlistment contract. See AFI 36-2612 ss 4.5.1, 4.5.1.1.
Subsequently, on September 18, Chief Master Sergeant Eva
Holland, Director of Military Personnel, 22nd Air Force,
voided Grant's reenlistment contract. This attempt was also
invalid because Grant had not yet submitted her statement of
circumstance explaining why her contract should not be void-
ed, as she was entitled to do under the regulations. See id.
s 4.5.1.1. Finally, on October 31, Holland again voided
Grant's reenlistment contract after Grant submitted her
statement of circumstance.
On September 7 Buchanan nonselected Grant for reenlist-
ment.3 Buchanan notified Grant of her nonselection on Sep-
tember 9 by letter and accompanying package sent certified
mail.4 Grant failed to appeal her nonselection to Military
Personnel Flight before the next Unit Training Assembly, see
AFI 36-2612 s 3.5.5.1, and therefore waived her right to
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3 Different Air Force regulations govern the nonselection of a
member for reenlistment and the voiding of a reenlistment contract.
To nonselect a member for reenlistment, the unit commander
"personally advises the member of the nonselection" and "advises
the member in writing of the right to appeal nonselection under
paragraph 3.8 of this instruction." AFI 36-2612 s 3.5.3.2. A
member who has been nonselected "must submit a written appeal to
[Military Personnel Flight] by the next scheduled [Unit Training
Assembly] after the date [he is] notified." Id. s 3.5.5.1. By
contrast, a reenlistment contract is voided by a "numbered" (here,
the 22nd) Air Force official. See id. ss 4.5.1, 4.5.1.1.
4 The letter and package were returned by the United States Post
Office marked "refused." The mail carrier who attempted delivery
testified that he specifically recalled delivering the certified mail to
Grant at her apartment and that Grant refused both. Grant
admitted that she refused to accept the package, see Complaint
p 17, but denied that she refused to accept the certified letter. See
Grant's November 18, 1997 Memorandum.
further review. Her only challenge to the district court's
grant of summary judgment involves her reenlistment con-
tract which she maintains was not properly voided.5
II.
On appeal Grant argues that her reenlistment contract was
valid because the three-day prematurity defect was cured on
June 7 when the six-month period began (the Air Force
having failed to discover the defect until June 10). We apply
de novo review "[w]here the decision under review is the
district court's assessment of the legal sufficiency of an
agency's action in light of the record." Dr Pepper/Seven-Up
Cos. v. FTC, 991 F.2d 859, 862 (D.C. Cir. 1993) (quotation
omitted). "[O]ur review ... is limited to determining wheth-
er [the Air Force's] decision is arbitrary and capricious." Id.
(citation omitted).
The record indicates that Grant did not raise her contract
claim before the district court, either in her complaint or in
her opposition to the Air Force's summary judgment motion.
At argument Grant maintained that, by explicitly challenging
her nonselection in her complaint, she also challenged by
implication the voiding of her reenlistment contract because
"the nonselection issue which we are not pursuing on appeal
and the contract issue were very closely intertwined." Tran-
script of October 20, 1999 Oral Argument 4; cf. Reply Br. 3-
4. Although the district court addressed the reenlistment
contract issue, see Memorandum Opinion 2 n.1, 17-18 ("the
plaintiff contends that the Air Force acted arbitrarily and
capriciously when it voided her reenlistment contract"), it is
not clear why the district court mentioned the issue because,
in another footnote, it indicated that it believed the contract
issue had been resolved. See id. at 9 n.6 ("Grant now
concedes that the Air Force's final decision of October 28
[sic], 1997 to void her reenlistment contract corrected any
procedural defects in the original voiding of the contract.").
__________
5 Although Grant challenged her nonselection in her complaint
filed in district court, she has not challenged it on appeal.
"Absent 'exceptional circumstances,' the court of appeals is
not a forum in which a litigant can present legal theories that
it neglected to raise in a timely manner in proceedings
below."6 Tomasello v. Rubin, 167 F.3d 612, 618 n.6 (D.C. Cir.
1999). Nevertheless, assuming without deciding that Grant
properly preserved her contract argument, her challenge fails
on the merits. The Air Force complied with AFI 36-2612
when Holland voided Grant's reenlistment contract on Octo-
ber 31. Grant concedes that her reenlistment contract was
voidable, see Petitioner's Br. 12, and that the Air Force
ultimately properly voided the contract. See Reply Br. 2
(Grant "did not challenge the Air Force's pro forma proce-
dural compliance with its regulations in the third attempt to
void Grant's contract"). She argues, however, that under the
holding in Vitarelli v. Seaton, 359 U.S. 535, 545-46 (1959), the
Air Force's pro forma compliance cannot cure its previous
error. In Vitarelli the Secretary of the United States De-
partment of the Interior dismissed an employee on Septem-
ber 10, 1954 because his "sympathetic association" with Com-
munist supporters posed a "security risk." Purporting to act
pursuant to departmental regulations, the Secretary filed a
"Notification of Personnel Action" on September 21, 1954
setting forth the reasons for the employee's dismissal. The
employee then challenged her termination as illegal and
ineffective because the Secretary had failed to comply with
the regulations applicable to dismissal for national security
reasons. Two years later, the Interior Department, realizing
it had failed to comply with its regulations, reissued the
notification, backdated to September 21, 1954 and described
as "a revision of and replac[ing] the original bearing the same
date." The notification was identical to the original except
that it omitted any reference to the reason for the employee's
discharge or to the authority under which the discharge was
effected. The Supreme Court held that the post hoc compli-
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6 Although Grant appeared to challenge the contract voiding in
her reply brief, see Reply Br. 11-12, our caselaw makes clear that
an argument first made in a reply brief comes too late. See
Fraternal Order of Police v. United States, 173 F.3d 898, 902-03
(D.C. Cir. 1999).
ance did not validly "revise" the initial defective dismissal.
Grant's case is distinguishable. Holland's second voiding of
Grant's reenlistment contract was not "a revision" of her first
attempt but an entirely new action which addressed Grant's
statement of circumstance as intended by the regulations.7
Thus, Holland properly voided Grant's reenlistment contract
on October 31 and, unlike the Interior Department in Vitarel-
li, did so timely. The fact that the Air Force erred in two
earlier attempts does not nullify its final, and correct, voiding
of Grant's reenlistment contract in compliance with AFI 36-
2612. Accordingly, the district court is
Affirmed.
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7 Holland's October 31st memorandum voided Grant's contract
"[a]fter further review of the request to void the reenlistment
(including the member's Statement of [Circumstance]) of Sergeant
Grant."