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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 5, 2005 Decided May 6, 2005
No. 04-5197
JOHN F. KREIS,
APPELLANT
v.
SECRETARY OF THE AIR FORCE, IN HIS OFFICIAL CAPACITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02317)
Daniel M. Schember argued the cause and filed the briefs
for appellant.
Charlotte A. Abel, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
2
Before: EDWARDS, ROGERS and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal stems from Air Force
Major (now retired) John F. Kreis’s continuing efforts to obtain
a correction of his military records and retroactive promotion by
the Air Force Board for the Correction of Military Records (“the
Board”). Following a remand, Kreis v. Sec’y of the Air Force,
866 F.2d 1508 (D.C. Cir. 1989) (“Kreis I”), the Board found on
April 6, 1992 that there was insufficient evidence to demonstrate
the existence of possible error or injustice warranting favorable
action on Kreis’s requests. The district court affirmed, Kreis v .
Sec’y of the Air Force, No. 85-1169 (June 3, 1994), aff’d, 1995
U.S. App. LEXIS 8737 (D.C. Cir. Mar. 8, 1995) (“Kreis II”)
(unpublished order), declining to consider three declarations that
had not been presented to the Board. Id. The Board
subsequently denied Kreis’s motion for reconsideration to which
he attached the three declarations and supplemental statements,
and the district court affirmed. Kreis now contends that the
Board was arbitrary and capricious when it denied
reconsideration without considering his evidence because it
failed to follow its regulation on reconsideration and its
precedent. On de novo review of the grant of summary
judgment to the Board, see Kidwell v. Dep’t of the Army, Bd. for
Corr. of Military Records, 56 F.3d 279, 286 (D.C. Cir. 1995),
we reverse and remand the case to the district court with
instructions to remand to the Board for consideration of Kreis’s
motion for reconsideration on the merits.
I.
The background to this appeal is set forth in Kreis I, 866
F.2d at 1509-11, and Kreis v. Sec’y of the Air Force, 648 F.
Supp. 383 (D.D.C. 1986). The only issue before the court is
whether the Board’s denial of Kreis’s motion for reconsideration
3
was contrary to law under its regulation and precedent. In
denying reconsideration the Board stated, in full:
The Board examined your request and concluded that it
does not meet the criteria for reconsideration by the
Board. Reconsideration is authorized only when newly
discovered relevant evidence is presented which was not
available when the application was submitted. The
reiteration of facts previously addressed by the Board,
uncorroborated personal observations, or additional
arguments on the evidence of record are not adequate
grounds for reopening a case.
(emphasis added) Whether the Board properly refused to
consider the documents submitted by Kreis for failure to meet
the criteria for reconsideration is governed by the Board
regulation on reconsideration, which provides, in relevant part:
Requests for reconsideration shall provide newly
discovered relevant evidence not reasonably available
to the applicant at the time of a previous application.
All requests . . . will be initially screened by the staff of
the Board . . . . * * * If such [new] factual allegations,
or documentary evidence have been submitted, the
request shall be forwarded to the Board for a
determination [whether to authorize a hearing,
recommend that the records be corrected without a
hearing, or to deny the application without a hearing].
32 C.F.R. § 865.9(c) (1994). Kreis sued the Secretary, alleging
that the Board’s refusal to reconsider his application was
arbitrary and capricious, and the district court granted summary
judgment to the Board, ruling that the decision of the Board is
supported by the evidence.
4
II.
As the court stated in Kreis I, while the district court’s
jurisdiction does not reach military personnel decisions, the
court has jurisdiction “to evaluate, in light of familiar principles
of administrative law, the reasonableness of the Secretary’s
decision not to take certain corrective action with respect to
[Kreis’s military] record.” 866 F.2d at 1511. The court need
only “determine whether the Secretary’s decision making
process was deficient, not whether his decision was correct.” Id.
So too the Board’s denial of Kreis’s motion for reconsideration
is subject to review under such principles of administrative law.
See id. at 1512-13. 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.” 5 U.S.C.
§ 706(2)(A) (2000). The court, therefore, must be able to
conclude that the Board “examine[d] the relevant data and
articulate[d] 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) (quoting Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “An
agency’s discretionary order [will] be upheld, if at all, on the
same basis articulated in the order by the agency itself.”
Burlington Truck Lines, 371 U.S. at 168-69. While the
Secretary contends that even greater deference is required here
because military personnel decisions are entitled to an
“unusually deferential” standard of review, Kreis I, 866 F.2d at
1513-14, the issue before the court does not involve a military
judgment requiring military expertise, but rather review of the
Board’s application of a procedural regulation governing its case
adjudication process. Upon de novo review of the district
court’s grant of summary judgment to the Board, Kidwell, 56
F.3d at 286, we conclude that a remand to the Board is required
for the following reasons.
5
First, the only fair reading of the Board’s decision is that, in
the Board’s view, the evidence submitted by Kreis did not
provide adequate grounds for the Board to reach the merits of
his request for reconsideration. The Board stated: “The Board
examined your request and concluded that it does not meet the
criteria for reconsideration by the Board.” Admin. Rec. at 123.
Neither has the Secretary argued on appeal that the Board
considered the merits of Kreis’s request. Thus, the Board denied
Kreis’s motion at the threshold level by deciding that the
documents he submitted did not warrant Board consideration of
the underlying merits of his request for reconsideration. This
conclusion is bolstered by a staff recommendation to the Board
that “only addressed the arguments of [Kreis] . . . to the extent
they relate to the appropriateness of this Board reconsidering its
decision.” Id. at 105.
In that light, the Board’s refusal to consider
“uncorroborated” evidence imposed a requirement not present
in its regulation and inconsistent with its precedent. The
evidence before the Board consisted of three declarations by
military officials, an excerpt from a deposition of a fourth
military official, and an affidavit by Kreis’s counsel regarding
statements made by Larry W. Neptune, a former Air Force
Personnel officer. According to the affidavit, Neptune stated
that a memorandum of Brigadier General William R. Brooksher,
Air Force chief of security police, which had been destroyed,
directed that Kreis should not be assigned to a command
position or to any other position of responsibility in the security
police field. The Board’s reference to “uncorroborated personal
observations” can only be a reference to the Neptune statements.
While the uncorroborated nature of the evidence might
appropriately weigh in the Board’s assessment of its probative
weight, the Board’s order denying reconsideration, fairly read,
was based on its view that the evidence submitted by Kreis
failed to provide a sufficient basis for the Board to reach the
6
merits of his motion for reconsideration. In addition, the Board
does not dispute Kreis’s assertion that it failed to follow its
precedent granting requests for reconsideration based on
uncorroborated statements. See Addendum to Record of
Proceedings, A.F.B.C.M.R. No. 9703586 (Dec. 17, 1998);
Addendum to Record of Proceedings, A.F.B.C.M.R. No.
9801126 (Mar. 29, 2000). It is axiomatic that “[a]n agency must
treat similar cases in a similar manner unless it can provide a
legitimate reason for failing to do so.” Indep. Petroleum Ass’n
of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996).
Therefore, the Board’s conclusion that the Neptune statements
did not meet the criteria for reconsideration because they were
“uncorroborated personal observations” is arbitrary and
capricious because it is inconsistent with its regulation and an
unexplained departure from its precedent.
Second, the Board also ignored its precedent in denying
reconsideration without addressing the substantive merits of the
three declarations attached to Kreis’s motion for reconsideration
or an excerpt from a deposition of a fourth military official
submitted as a supplement to his motion. Kreis points to Board
precedent that treated as evidence, not arguments, expert opinion
refuting Board judgments and reasoning. See also Guy v. United
States, 608 F.2d 867, 874 (Ct. Cl. 1979). Yet in denying
reconsideration, he contends, the Board “did not dispute that the
declarations, deposition testimony, and statements that Major
Kreis submitted were newly discovered, relevant, and not
reasonably available at the time of Major Kreis’s 1981
application,” but instead “held them not to be evidence.” Br. for
Appellant at 5-6.
The Board decisions appended to Kreis’s brief on appeal
indicate that while the Board may not give much weight to
expert opinion, upon submission of such expert opinions, the
Board has reached the merits of a motion for reconsideration.
7
E.g. Second Addendum to Record of Proceedings,
A.F.B.C.M.R. No. 9103049 (Feb. 16, 1999); see, e.g.,
Addendum to Record of Proceedings, A.F.B.C.M.R. No.
9702571 (Aug. 24, 1999). The Secretary does not attempt to
distinguish the Board precedent cited by Kreis; but rather makes
the bald assertion that the Board “is not bound by its previous
decisions” in unrelated cases in which reconsideration was
granted. Br. for Appellee at 11-12. Absent any reasoned
explanation in the Board’s decision for different treatment of
Kreis’s expert military evidence, see Indep. Petroleum Ass’n of
Am., 92 F.3d at 1258, the denial of reconsideration for failure to
meet the criteria for reconsideration under the rule, when it has
previously granted reconsideration upon submission of expert
military opinion, is arbitrary and capricious.
To the extent the Secretary maintains the expert military
opinions are not newly discovered evidence under 32 C.F.R. §
865.9(c), because they merely reiterate facts already before the
Board and assert opinions that the Board made the wrong
decision in 1992, the declarations and deposition focus on the
military practice rationale and statistical evidence relied on by
the Board in 1992 in concluding that there was insufficient
evidence to demonstrate the existence of possible “error or
injustice” warranting relief. See 32 C.F.R. § 581.3(a)(4).
According to the expert military opinions, the Board’s rationales
for denying Kreis relief departed from the practices of Special
Selection Boards in deciding on promotions. The Declaration
of U.S. Air Force Lieutenant General Devol Brett (retired),
which was embraced by the Declarations of U.S. Air Force
Colonel Ervin C. Stewart (retired) and U.S. Air Force Colonel
George H. Knudson, Jr. (retired), focuses on the Board’s
methodology of relying on evaluations dated before 1971 –
during Kreis’s first three years as a captain and his service as a
lieutenant – to determine that his record showed “somewhat
erratic performance” and to conclude that a 1979 officer
8
effectiveness report bearing a favorable endorsement by
Lieutenant General James D. Hughes, Commander-in-Chief of
the Pacific Air Force, and an assignment to the high-level
position would not have caused Kreis to be selected for
promotion. The Brett Declaration states, “Performance as a
major, not performance as a lieutenant or young captain, is most
important to a lieutenant colonel selection board.” The Brett
Declaration also states that the Board relied on an incorrect set
of statistics – the 31% and 7% overall selection rates for regular
and reserve officers respectively in 1980 – because “[f]irst-time
eligibles, like Major Kreis in 1980, have the highest selection
rates of all officers under consideration” and the “relevant
statistics” were at least 63.7% for the group of first-time
eligibles as a whole and 68.4% for the group falling into a
controlled category to which Kreis belonged. These statistics,
the Brett Declaration stated, indicate that Kreis was more likely
than not to be selected for promotion in 1980. Finally, the Brett
Declaration stated that the Board should have compared Kreis’s
record to the sample of records viewed by the 1980 Special
Selection Board or to any other appropriate sample of records,
as is the practice of Special Selection Boards. In addition, the
excerpt from the deposition of Air Force General Howard J.
Ingersoll of November 8, 1996 confirmed General Brett’s point
that the rank of the reviewing official is very important and that
an endorsement by Lieutenant General Hughes, as “the most
senior Air Force officer who could participate as an endorsing
official, and who was Commander-in Chief of the major aid
command, would have made a marked difference in the opinions
of the board members.”
Having previously considered such expert military opinion
to be “newly discovered relevant evidence” warranting
consideration of a motion for reconsideration on the merits, the
Board, which is a civilian board, Roelofs v. Sec’y of the Air
Force, 628 F.2d 594, 596 n.8 (D.C. Cir. 1980), failed to explain
9
why it treated the expert military opinions here differently.
Therefore, the Board’s conclusion that reconsideration was not
authorized on the basis of newly discovered relevant evidence
was arbitrary and capricious.
Accordingly, we reverse and remand the case to the district
court with instructions to remand to the Board for consideration
of the merits of Kreis’s motion for reconsideration; such
reconsideration shall address the merits of the expert military
opinions expressed in the declarations of U.S. Air Force
Lieutenant General Brett, U.S. Air Force Colonel Stewart, and
U.S. Air Force Colonel Knudson, the other evidence Kreis
submitted with his motion, and any supplements to his motion.