United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2006 Decided January 19, 2007
No. 05-5471
MARTIN J. GILLAN, IV,
APPELLANT
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00311)
Eugene R. Fidell argued the cause for appellant. With
him on the briefs was Matthew S. Freedus.
W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Appellant Martin Gillan, IV
was discharged from the United States Naval Reserve because
he was twice passed over for promotion while classified as an
active reservist. Gillan has challenged his discharge on the
ground that the Navy should not even have considered him for
a promotion and only did so because it had improperly failed to
transfer him to an inactive status. He brought his claim first to
the Navy’s Board for Correction of Naval Records (“BCNR”),
where he lost. He next sought review of the Navy’s decision in
federal district court, which granted summary judgment against
him. We affirm the district court’s judgment because we find
that 10 U.S.C. § 12642, the statute that governs how the Navy
classifies and evaluates reservists, does not provide a specific
time frame in which the Navy must transfer qualified reservists
to inactive status.
I.
A Naval Reservist’s pay, benefits, and eligibility for
promotion turn on both his status as either an active or inactive
reservist and the category of service in which he is classified.
Reservists in an active status can be paid, are eligible to train,
earn retirement points, and be considered for promotion.
BUREAU OF NAVAL PERSONNEL INSTRUCTION 1001.39A § 102(1)
(1992). Inactive reservists cannot be paid, participate in training,
earn retirement points, or be considered for promotion. Id.
§ 102(2). There are three categories of service for reservists:
Ready Reserve, Standby Reserve, and Retired Reserve. Id.
§ 101. The Ready Reserve is further divided into the Selected
Reserve and the Individual Ready Reserve, both of which are
active status. Id. § 102(1). There are two subcategories of
Standby Reservists: Standby Reserve Active and Standby
Reserve Inactive. Id. § 103(2). As the names indicate, the
former is an active status category, the latter an inactive status.
3
Retired Reservists must have met the requirements for a military
pension and may not earn more retirement points or be promoted.
Id. § 102(3). Whether Gillan should have been considered for
promotion turns on whether he was properly classified in an
active status in the Ready Reserve or in an inactive status in the
Standby Reserve Inactive.
Congress has directed the Navy to prescribe “equitable
procedures for the periodic determination” of whether reservists
meet the standards and qualifications for their status. 10 U.S.C.
§ 12641; see also 10 U.S.C. § 10149 (directing the military to
provide a “system of continuous screening of units and members
of the Ready Reserve”). Department of Defense and Navy
regulations require that the Navy conduct an annual screening to
make this determination. See 32 C.F.R. § 44.5(c)(1) (“Screen, at
least annually, all Ready Reservists under their jurisdiction to
ensure their immediate availability for active duty [] and to
ensure compliance with 10 U.S.C. 10149.”); BUREAU OF NAVAL
PERSONNEL INSTRUCTION 1001.39A § 2102 (1992) (requiring
that “[a]ll members of the Ready Reserve who are not on active
duty will be screened at least annually”). If a reserve
commissioned officer fails to meet the requirements of active
status, the Navy “shall”: (1) transfer him to the Retired Reserve
if qualified; (2) transfer him to inactive status if qualified; or (3)
discharge him from his reserve appointment. 10 U.S.C. § 12642.
Notably, although Congress requires the transfer of delinquent
active reservists, the statute says nothing about when that must
happen.
Gillan was commissioned as a Coast Guard officer in
1978 and served on active duty as an aviator until he was
honorably discharged in 1985 at the rank of Lieutenant. He
served in the Coast Guard Individual Ready Reserve from May
1985 until October 1987. Gillan then transferred to the Naval
Reserve in late 1987 as a member of the Ready Reserve and was
4
promoted to Lieutenant Commander in 1990. In December
1990, Gillan was activated for service in Operation Desert Storm.
After hostilities ceased and effective May 31, 1991, he
transferred to the Individual Ready Reserve in an active status.
At the time of this transfer, the Navy told Gillan that,
If you desire a category of lesser participation in
the Naval Reserve, you may wish to request a
transfer to the Standby Reserve, Inactive. In that
category, you will not be allowed to participate
except in time of war and would not be eligible
for promotion until one year after your return to
the Ready Reserve.
Letter from Commanding Officer, Naval Air Reserve San Diego,
to Martin J. Gillan (June 12, 1991). Gillan never responded to
this invitation. He failed to seek a transfer to the Standby
Reserve Inactive. In fact, Gillan had no communication with and
did not participate in the Naval Reserves in any capacity for the
next six years because of “pressing family reasons” and his
“civilian employment as a junior airline pilot.” Appellant’s Br.
at 5.
As a member of the Individual Ready Reserve, Gillan
was required, through participation and training, to earn “27
points . . . each anniversary year” to remain in an active status.
BUREAU OF NAVAL PERSONNEL INSTRUCTION 1001.39A
§ 104(1) (1992). His complete failure to fulfill any of his reserve
duties from the time of his transfer to the Individual Ready
Reserve on March 31, 1991, made him subject to review by an
entity called the Mobilization Disposition Board (“MDB”). The
MDB determines whether a reservist will be transferred pursuant
to guidelines created by Congress in 10 U.S.C. § 12642. In
Gillan’s case, the MDB ultimately had two options in the face of
his total failure to participate in any of his reserve duties: transfer
5
him from active status as a member of the Individual Ready
Reserve to inactive status in the Standby Reserve Inactive or, in
the alternative, discharge him from the Naval Reserve altogether.
10 U.S.C. § 12642(b). Gillan’s case was not considered by the
January 1993 MDB because the files for that MDB were
collected in July 1992, before the Navy had any record of his
noncompliance. Letter from Chairman, Board for Correction of
Naval Records, to Secretary of Navy 2-3 (Dec. 15, 2003)
(“BCNR Decision”). Gillan was also not considered by the
August 1994 MDB. The BCNR noted in its final decision that
the Navy normally notified reservists whose records would be
screened by the MDB and “those who did not respond to their
notification letter were placed on a list to go to the next
scheduled board.” Id. at 3. This notification letter is intended to
provide delinquent active reservists a chance to respond to a
possible change in reserve status that affects their pay and
retirement benefits. The BCNR thus believed that because
Gillan admitted that he had “zero contact” with the Navy in
1994, his failure to respond to the Navy’s presumed notification
pushed the review of his record past the 1994 MDB to the next
MDB in August 1995. That MDB did consider Gillan’s record
of non-compliance and transferred him to an inactive status in
the Standby Reserve Inactive. Id.
While Gillan was still in an active status as a member of
the Ready Reserve from May 1991 until the August 1995 MDB
decision, he was eligible for promotion. BUREAU OF NAVAL
PERSONNEL INSTRUCTION 1001.39A § 102(1) (1992). Naval
Reserve Line Commander Selection Boards reviewed Gillan’s
file in April 1994 and April 1995 but failed to promote him to
Commander, a not surprising decision given his non-involvement
with the Reserves. In 1997, two years after his transfer to an
inactive status, Gillan tried to renew his activity in the Naval
Reserve by participating in training drills. After Gillan
participated in drills for five months, the Navy notified him in
6
March 1998 that he could no longer participate in reserve
activities because a Lieutenant Commander who twice fails
selection for Commander must be discharged after twenty years
of commissioned service. See id. § 105(3)(b). Another MDB
considered Gillan’s record in March 2001, and he was honorably
discharged from the Naval Reserve on August 1, 2001.
In addition to challenging his discharge, Gillan has also
requested that the Navy revise upward one grade on his 1990
fitness report, an annual performance review. He relies on a
1998 letter written by his former commanding officer. Gillan’s
commanding officer originally gave Gillan a grade of “B” for
“Desirability [for] Command.” Eight years later, he asked that
this grade be changed to an “A.” His stated justification for this
change was, “Information received after report was written
justifies a higher grade: specifically volunteered for Desert
Storm. Outstanding command of his Maintenance Division.”
Letter from Captain Jorgensen, S.A., USNR, to Naval Personnel
Command (Dec. 1, 1998). On a number of occasions, Gillan
sought to have the Navy make this change to his 1990 fitness
report and to vacate its decisions not to promote him, which
would allow his continued service. He first petitioned the Navy
in 1998. The BCNR considered and then rejected this request on
June 24, 1999. Two subsequent petitions for rehearing were
denied in 2001 and 2002 because Gillan failed to present new or
material evidence that had not been previously considered.
Gillan finally wrote the Assistant General Counsel of the Navy
in 2003 seeking reconsideration, which was granted. A new
BCNR weighed Gillan’s petition but once again recommended
to the Secretary of the Navy that relief be denied. Gillan then
turned to the federal courts. The district court granted summary
judgment for the Navy, holding that, “Because the Navy was
under no obligation to transfer Gillan before it did, the [BCNR]’s
decision that Gillan was properly considered for, and denied,
promotion was not arbitrary and capricious.” Gillan v. England,
7
No. 04-311, 2005 WL 3213900, at *4 (D.D.C. Nov. 1, 2005).
The district court also denied Gillan’s petition to change his
fitness report because Navy regulations only permit commanding
officers to make changes to fitness reports within two years of
the report. Id. at *5.
II.
We review an agency’s interpretation of a statute it
administers under the two-step process of Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
We first determine whether “the intent of Congress is clear.” Id.
at 842. If it is, then “that is the end of the matter,” id., and we
enforce the plain language of the statute regardless of the
agency’s views. If the intent of Congress is not clear from the
language of the statute because “the statute is silent or
ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. “At the same time,”
because the BCNR decision was also a final agency action, the
APA requires us to determine whether it was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.” Shays v. FEC, 414 F.3d 76, 96 (D.C. Cir. 2005)
(quoting 5 U.S.C. § 706(2)(A)); see also Frizelle v. Slater, 111
F.3d 172, 176 (D.C. Cir. 1997) (deferring “to the Board’s
decision unless it is arbitrary and capricious, contrary to law, or
unsupported by substantial evidence”). More specifically,
Although we have jurisdiction to review the
decisions of the Correction Board, we do so
under an “unusually deferential application of the
‘arbitrary or capricious’ standard” of the
Administrative Procedure Act. Kreis v. Secretary
of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir.
1989); see Kidwell v. Department of the Army, 56
8
F.3d 279, 286 (D.C. Cir. 1995).
Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (footnote
omitted). We review de novo the district court’s grant of
summary judgment for the Navy. See, e.g., id.; Frizelle, 111
F.3d at 176.
Gillan first argues that 10 U.S.C. § 12642(b) requires that
the Navy conduct an annual screening of all reservists followed
by an immediate transfer to inactive status of those who failed to
qualify for active status. Under Gillan’s view of the statute, the
Navy should have transferred him from the Ready Reserves to an
inactive status earlier than it did and, in what is crucial for his
argument, he would then not have been considered for and
passed over for promotions in 1994 and 1995. Without these
failed promotions, which only came about because he was
mistakenly classified in an active status at a time when he was
qualified for an inactive status, Navy regulations would have
allowed Gillan to continue his Reserve service. In effect, Gillan
argues that the Navy should interpret § 12642(b) to protect him
from his own inactivity and his failure to request a transfer to
inactive status. We read 10 U.S.C. § 12642(b) differently.
Turning first to the text of the statute:
(b) Subject to section 12645 of this title, a reserve
commissioned officer who fails to attain the
number of points, or to conform to the standards
and qualifications, prescribed in subsection (a)
shall—
(1) be transferred to the Retired Reserve
if he is qualified and applies therefor;
(2) if he is not qualified or does not apply
for transfer to the Retired Reserve, be transferred
to an inactive status, if he is qualified therefor; or
(3) if he is not transferred to the Retired
9
Reserve or an inactive status, be discharged from
his reserve appointment.
10 U.S.C. § 12642(b). Gillan is correct that the word “shall”
limits the Secretary’s discretion and in fact requires the Navy to
transfer to an inactive status or the Retired Reserves a Ready
Reservist who fails to fulfill the obligations of that category. But
nowhere does the statute impose a time requirement for such a
transfer. Gillan argues, however, that § 12642(b) must be read
together with 10 U.S.C. § 10149, which requires the Navy to
implement a system of “continuous screening,” and other Navy
and Department of Defense regulations that speak of an annual
“screening,” see BUREAU OF NAVAL PERSONNEL INSTRUCTION
1001.39A § 2102 (1992); 32 C.F.R. § 44.5(c)(1). When so read,
they create, according to Gillan, a process in which the Navy
conducts an annual screening of reservists’ status, followed by
a mandatory immediate transfer to inactive status for those who
have failed to maintain the requirements of an active reservist.
But Gillan’s argument conflates the requirements of an annual
“screening,” called for by Navy and Department of Defense
regulations, with the obligation to “transfer” reservists who no
longer qualify for active status, called for in 10 U.S.C.
§ 12642(b). Screening is certainly an understandable
prerequisite to transfer. One would expect the Navy to identify
those reservists who are eligible for transfer from active status or
discharge from the Reserves. But it does not follow that the
Navy’s “screening” process should be read into the “transfer”
statute to require the Navy to transfer reservists immediately
after screening.1
1
The district court found that the Navy violated its own
screening regulations because it could not explain the failure of
the 1994 MDB to screen Gillan and therefore failed to
“annually” screen Gillan. Gillan, 2005 WL 3213900, *2. The
10
Congress has determined that the Navy’s decision to
transfer a reservist to an inactive status cannot be based solely on
an individual’s performance. The Navy must consider the needs
of the service as well. For example, 10 U.S.C. § 10149 directs
the Secretary to provide a system of screening the Reserves so as
to ensure that, among other things, there is a “proper balance of
military skills,” 10 U.S.C. § 10149(a)(2), and “[t]hat except for
those with military skills for which there is an overriding
requirement, members having critical civilian skills are not
retained in numbers beyond the need for those skills,” id.
§ 10149(a)(3). Based on its discretion and a determination of its
needs, the Navy could choose not to transfer immediately a
delinquent reservist from the Ready Reserves. The facts
presented here—taking three years to transfer an admittedly
unresponsive reservist—do not require us to address the outer
limits of the Navy’s discretion. Congress was certainly free to
eliminate this discretion by writing a specific timeline into the
statute, but it has chosen not to restrain the Secretary in this way.
district court found that this was not enough, however, to
warrant Gillan’s requested relief because it was the Navy’s
failure to screen and transfer him to inactive status that led to
his failed promotions. Id. The Navy argues that Gillan was in
fact screened because “screening” includes “administrative
activities performed independent of and antecedent to the
MDB.” Appellee’s Br. at 26. According to this view, screening
would include the decision to send Gillan’s record for MDB
review and any attempts to notify Gillan of the MDB
proceedings. We need not reach the issue of whether the Navy
violated its own screening regulations because, even assuming
that the Navy failed to timely screen Gillan for transfer to
inactive status, nothing in the statute or the regulations mandates
immediate transfer to inactive status after screening.
11
In addition to the substantial deference we traditionally give to
decisions involving military personnel, we also give considerable
deference to an agency’s control over timelines. Cf. Sierra Club
v. Gorsuch, 715 F.2d 653, 658 (D.C. Cir. 1983) (“Absent a
precise statutory timetable or other factors counseling
expeditious action, an agency’s control over the timetable of a
rulemaking proceeding is entitled to considerable deference.”)
(footnotes omitted). Gillan is thus asking this Court to restrain
the Navy’s discretion to make personnel decisions and intrude
upon its ability to allocate resources. Framing the question in
this manner makes the answer clear. Because Congress has not
spoken to the issue of a timeline, we must defer here to the
Navy’s permissible interpretation of 10 U.S.C. § 12642(b) that
gives the Navy discretion in determining the timing of transfer.
Gillan has presented no credible argument other than his rejected
statutory interpretation that the BCNR was arbitrary or
capricious in finding that he was properly considered for and
denied promotion.
Gillan also asserts that the Navy erred when it failed to
permit him to correct one grade on his 1990 fitness report based
on his former commanding officer’s 1998 letter. The BCNR
denied Gillan’s request because, “The reporting senior’s letter,
some eight years after the fact, does not persuade the BCNR that
a change was warranted. The Board notes that the Petitioner
may ask the NPC [Naval Personnel Command] to file the letter
in his record with the report to which it relates.” BCNR
Decision at 4. Although the Navy could have undoubtedly
offered a more detailed denial, “[a] reviewing court will uphold
a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Frizelle, 111 F.3d at 176 (quotation
marks and citations omitted). In fact, the Navy need only show
that the BCNR’s decision contains a “rational connection
between the facts found and the choice made.” Motor Vehicles
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
12
(1983) (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)). In this case, the fact “found” is that
this correction was submitted eight years after the initial fitness
report. The BCNR need not address other factors because the
letter requesting the change does not explain why it took Gillan’s
former commanding officer eight years to make this
recommended change. Navy regulations specify that fitness
reports can be changed by the reporting senior (commanding
officer) within two years from the end of the report. BUREAU OF
NAVAL PERSONNEL INSTRUCTION 1610.10 Rule P-4 (1995).
“Supplementary material submitted more than 2 years after the
report ending date [] will be accepted only if the reporting senior
demonstrates in a cover letter,” to the satisfaction of the
appropriate official, “why the material could not have been
submitted in a more timely fashion.” Id. Rule P-4(c). The
Navy’s path, although not a model of clarity, can be
discerned—this request was submitted outside of two years, and
the sparse request failed to comply with requirements for late
submissions. See Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir.
1986) (“[I]f the necessary articulation of basis for administrative
action can be discerned by reference to clearly relevant sources
other than a formal statement of reasons, we will make the
reference.”) (quoting Envtl. Def. Fund, Inc. v. EPA, 465 F.2d
528, 537 (D.C. Cir. 1972)).
III.
For the foregoing reasons, the district court’s grant of
summary judgment is affirmed.
So ordered.