                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

JETHRO COE, JR.,                                 :
                                                 :
               Plaintiff,                        :       Civil Action No.:      12-1059 (RC)
                                                 :
               v.                                :       Re Document No.:       10, 14
                                                 :
JOHN MCHUGH,                                     :
                                                 :
               Defendant.                        :

                                 MEMORANDUM OPINION

GRANTING THE DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY
   JUDGMENT; DENYING THE PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

                                      I. INTRODUCTION

       This action seeks review of a decision by the Army Board for Correction of Military

Records (“ABCMR” or “Board”). The plaintiff is a U.S. Army veteran, who claims that when he

served in the military, he unjustly received an adverse Officer Evaluation Report (“OER”). He

later obtained a sworn statement from the lieutenant colonel who had written the allegedly

adverse OER, which recanted his negative comments and review. The plaintiff then filed an

application with the ABCMR to amend the OER, which was denied. The plaintiff now files this

action, appealing that decision, pursuant to the Administrative Procedure Act (“APA”). He seeks

correction of his military record, and also claims that because of the allegedly adverse OER, he

was barred from promotion and was essentially forced to retire. The defendant has filed a

motion to dismiss, or in the alternative, for summary judgment. In response, the plaintiff has

filed a cross-motion for summary judgment. Because the Board evaluated all of the evidence

before it and applied the relevant Army regulation in its analysis, its decision was well-reasoned




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and not arbitrary and capricious. The defendant’s motion for summary judgment is therefore

granted, and the plaintiff’s claims are dismissed.



          II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

       The plaintiff is a U.S. Army veteran with thirty years of service. Pl’s SMF ¶ 1. At some

point between October of 1992 and July of 1993, while serving in the Army, he received a

directive from the Department of the Army USSOCOM to cancel an operational exercise that

had been requested by the Deputy Chief of Staff, Logistics, who was the plaintiff’s senior rater.

Id. ¶ 5. The plaintiff was instructed to submit a Disposition Form canceling the exercise, which

he did. Id. ¶ 6. He forwarded the form to his rater and senior rater, explaining what had

happened. Id. The plaintiff claims that upon return from temporary duty, the senior rater was

upset that the plaintiff had canceled his operation. Id. In August of 1993, the plaintiff received

an OER that stated that the plaintiff’s “overbearing nature ha[d] diminished his relationship with

people and overall effectiveness.” Def.’s SMF ¶ 10. The plaintiff claims that the OER was

written by Lieutenant Colonel Seetin at the direction of the senior rater, who was angry at the

plaintiff for having canceled the operation. Pl.’s SMF ¶ 8.

       In 2010, the plaintiff obtained a sworn statement from Lieutenant Colonel Seetin, which

recanted his negative comments in the OER and substituted positive language in its place. Id. ¶

9. On July 16, 2010, the plaintiff applied to the ABCMR, seeking corrections to the OER, and

asserting that the OER was the result of bias and prejudice by the rating officials. Def.’s SMF ¶

19. On September 23, 2010, the ABCMR, in a unanimous decision, denied the plaintiff’s request

for corrections to the OER. Id. ¶ 21. The plaintiff has now filed this action appealing that

decision, pursuant to the Administrative Procedure Act, seeking correction of that record. He



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also alleges that because of the allegedly adverse OER, he was barred from promotion and was

essentially forced to retire, in violation of his Fifth Amendment due process rights. The

defendant has filed a motion to dismiss, or in the alternative, for summary judgment. In

response, the plaintiff has filed a cross-motion for summary judgment. The Court now turns to

the parties’ arguments and the applicable legal standards.



                                   III. LEGAL STANDARDS

    A. Legal Standard for Summary Judgment When Reviewing a Final Agency Action

       Under Rule 56(a), summary judgment is appropriate when the pleadings and the evidence

demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Id. In a case involving review of a final agency action under the

Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does

not apply because of the court’s limited role in reviewing the administrative record. See Nat'l

Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, *7 (D.D.C. 2005);

Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C. 1995), amended on other grounds,

967 F.Supp. 6 (D.D.C. 1997).

       Under the APA, the agency’s role is to resolve factual issues to arrive at a decision that is

supported by the administrative record, while “the function of the district court is to determine

whether or not as a matter of law the evidence in the administrative record permitted the agency

to make the decision it did.” See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.

1985); see also Northwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468,

1472 (9th Cir. 1994) (“[T]his case involves review of a final agency determination under the

[APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court.

Rather, the court's review is limited to the administrative record.”). Summary judgment thus

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serves as the mechanism for deciding, as a matter of law, whether the agency action is supported

by the administrative record and otherwise consistent with the APA standard of review. See

Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C. Cir. 1977), cited in *63 Bloch v. Powell, 227

F.Supp.2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003).

          B. Legal Standard for Judicial Review of an ABCMR Decision Under the APA

       Under the APA, an agency action may be set aside if it is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review of

agency actions under the “arbitrary and capricious” standard is “highly deferential” and

“presumes the agency's action to be valid.” Envt’l. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283

(D.C. Cir. 1981). In assessing an agency decision, a court reviews whether “the decision was

based on a consideration of the relevant factors and whether there has been a clear error of

judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotation

marks and citation omitted). “The scope of the Court's review under this standard ‘is narrow and

a court is not to substitute its judgment for that of the agency.’” Motor Vehicle Mfrs. Ass'n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983). “[A] reviewing court may not set aside

an agency [decision] that is rational, based on consideration of the relevant factors, and within

the scope of the authority delegated to the agency by the statute,” so long as the agency has

“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.’” Id. at 42–43 (quoting

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Indeed, nothing more

than a “brief statement” is necessary, as long as the agency explains “why it chose to do what it

did.” Tourus Records, 259 F.3d at 737. If the court can “reasonably discern[]” the agency’s




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path, it will uphold the agency’s decision. Pub. Citizen, 988 F.2d at 197 (citing Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

        Moreover, while judicial review of an agency's actions is generally narrow and subject to

a presumption of validity, review of the Board's decisions in particular under the APA is

“unusually deferential.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006) (citing Kreis

v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). Military boards such as the

ABCMR are entitled to greater deference than civilian administrative agencies. Calloway, 366

F. Supp. 2d at 53 (citing Kreis v. Air Force, 866 F.2d 1508, 1514-15 (D.C. Cir. 1989)). When

reviewing a decision of the Board, a court's “inquiry focuses not on whether the Army was

‘substantively correct’ . . . but rather on whether the ABCMR's explanations for that choice

demonstrate that [a] defendant[] ‘permissibly exercised [its] discretion and made a choice that is

supported by at least substantial evidence.’” Hill v. Geren, 597 F.Supp.2d 23, 29 (D.D.C. 2009)

(internal citation omitted). A court need only find that the decision of a military review board

“minimally contains a rational connection between the facts found and the choice made.”

Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (internal quotation marks and citations

omitted). 1

              C. The Court Grants the Defendant’s Motion for Summary Judgment

        The defendant argues that summary judgment should be granted in its favor because the

Board’s decision was not arbitrary or capricious. Def.’s Mot. at 23. The plaintiff counters that

the Board failed to examine the complete record or to address his specific arguments. Pl.’s Mot.


1
         The plaintiff’s complaint requested back pay, allowances, and a promotion, but when the
defendant argued that this Court lacks jurisdiction over such claims, the plaintiff conceded that these
claims do not fall under the scope of the APA, and withdrew them. Pl.’s Mot. at 10. Further, the
government contends that the plaintiff’s claim failed because he did not claim a cognizable property or
liberty interest in continued service. Def.’s Mot. at 17. But the plaintiff failed to respond to this
argument, and therefore conceded it.
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at 11. Specifically, the plaintiff contends, the Board did not discuss whether the OER was an

aberration after thirty years of purportedly outstanding evaluations, and it did not properly

consider Lieutenant Colonel Seetin’s revised statements. Id. at 12-13.

        The ABCMR is required to “decide cases on the evidence of record,” which means that

“[i]t is not an investigative body.” 32 C.F.R. § 581.3. The Board considered Army Regulation

No. 623-105 (“regulation”) in its analysis. Admin Record (“AR”) at 5. The regulation

“prescribes the policy for completing evaluation reports and associated support forms that are the

basis for the Army’s Evaluation Reporting System.” App’x, Dckt [#10-3] at 13. Chapter six of

the regulation governs the Officer Evaluation Redress Program, which outlines the burden of

proof and type of evidence required for a successful OER appeal. Id. at 18. In its decision, the

Board described how the regulation states that an evaluation that has become part of an officer’s

official record is presumed to have been prepared by the proper designating rating officials, and

that it is also presumed to be correct. AR at 9. The regulation chapter states:

        The burden of proof rests with the appellant. Accordingly, to justify deletion or
        amendment of a report, the appellant must produce evidence that establishes clearly and
        convincingly that – (1) The presumption of regularity . . . should not be applied to the
        report under consideration. (2) Action is warranted to correct a material error, inaccuracy,
        or injustice.

App’x at 18. 2

        The Board considered the plaintiff’s application for correction of his military record, its

supporting documents, and the military personnel records of the officer involved. AR at 5. The

Board described how one part of the OER stated that the plaintiff mentored and aided soldiers in


2
         The Board looked at an outdated version of the regulation, see App’x at 12, but because the
language did not change between it and the new version, that error was harmless. See Jicarilla Apache
Nation v. U.S. Dep’t of the Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010) (“The harmless error rule
applies to agency action because [i]f the agency's mistake did not affect the outcome, if it did not
prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.”) (internal
quotation marks and citation omitted).
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need, assigned a female solider with a disability to overcome obstacles and secure a medical

retirement, provided joint service professional development training for his warrant officers, and

enjoyed other accomplishments, including executing an aggressive lateral transfer program,

strengthening property accountability of items valued at over twenty billion dollars, and provided

thorough, detailed, and timely asset shortage information and analysis. AR at 2. The Board also

considered how the senior rator stated in the OER that the plaintiff was “Above Center of Mass,”

supported the command “to the utmost,” “modernized” their property accounting capability,

disciplined their unit control of equipment, “devoted endless hours toward the advancement and

profession[al] development of his subordinates,” and that he was a “demanding leader” who

knew how to “obtain excellence in everything that he [did].” AR at 7.

       In addition, the OER stated that the plaintiff’s “overbearing nature ha[d] diminished his

relationship with people and his overall effectiveness.” Id. The Board noted that the plaintiff

commented in 1993 that the OER was unprofessional, and that its negative comments were a

form of retaliation for the aforementioned incident. Id. at 7. Further, the Board considered

Lieutenant Colonel Seetin’s sworn statement from 2010, which declared that the OER was “out-

of-balance” and “an injustice” to the plaintiff’s “professional work ethics, his professionalism

and his military career.” Id. at 14. Ultimately, the Board concluded that this “statement[,]

alone[, was] not sufficient” to meet the burden of proof that the contested OER was inaccurate or

unjust. Id. at 14. The Board also noted that the sworn statement was obtained “more than 15

years after the OER [had been] prepared,” and appeared to be “based on retrospective thinking.”

Id. at 10. The Board therefore concluded that the plaintiff did not offer enough evidence to show

that his rating officials had not complied with regulatory requirements to evaluate him in a fair

and unbiased manner. Id. Thus, the Board stated, the plaintiff did not provide “compelling



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evidence to overcome the presumption of regularity” with regard to his rating officials’

evaluation. Id.

       The Board appears to have arrived at a well-reasoned conclusion, as it reviewed all of the

evidence in the record, and concluded that a singular statement from the rator fifteen years after-

the-fact was insufficient to clearly and convincingly rebut the presumption that the OER was fair

and unbiased. To that end, this Circuit has held on multiple occasions that post hoc statements

from ratings officers that reflect a change of heart as to previous reviews are not sufficient

evidence for a successful appeal. Musengo v. White, 286 F.3d 535, 539 (D.C. Cir. 2002)

(holding that a rater’s post hoc change of heart was insufficient to alter a prior OER because

Army Regulation 623-105 mandates that post hoc statements that retract an earlier adverse

review “will not be used to alter or withdraw a report,” as “raters may attempt to retract

otherwise accurate assessments when requested to do so by their disappointed officers,” which is

insufficient to overcome the presumption of regularity regarding the evaluation) (internal

citations omitted); Cone v. Caldera, 223 F.3d 789, 794 (D.C. Cir. 2000) (determining that post

hoc statements by a rating official would not be accepted to amend an OER because such

statements “often reflect retrospective thinking, or second thoughts, prompted by an appellant’s

non-selection or other unfavorable personnel action claimed to be the sole result of a contested

report,” and such changes were considered “reflections” of the rater’s “sympathy for the pleas of

his subordinates, rather than as accurate statements of his original intent”) (internal citation

omitted). Further, the fact that much of the OER is filled with glowing praise of the plaintiff

lends further credence to the presumption that it was fair and balanced.

       Based on an over-reading of United States v. Vierrether, 27 Fed. Cl. 357 (Ct. Cl. 1992),

the plaintiff contends that the Board did not discuss whether the OER was an aberration after



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thirty years of purportedly outstanding evaluations, id., but nothing in the record indicates that

the plaintiff provided thirty years worth of evaluations for the Board to review, or even that it

presented that argument to the Board, see generally AR 5-11. 3 Rather, the Board examined the

relevant data and established a rational connection between the facts it found and the decision

that it made. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30

(1983). The Court thus concludes that the Board's “explanations for [its] choice demonstrate that

[it] ‘permissibly exercised [its] discretion and made a choice that is supported by at least

substantial evidence.’” Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013)

(internal citation omitted). Its decision was not “arbitrary and capricious,” and the defendant is

therefore entitled to judgment as a matter of law. See Tindal v. McHugh, 2013 WL 2255200, at

*16 (D.D.C. May 23, 2013) (holding that because the ABCMR applied Army regulations in its

analysis and evaluated all of the evidence before it, its decision was supported at least by

substantial evidence, and was not arbitrary and capricious). Accordingly, the defendant's motion

for summary judgment is granted, the plaintiff's cross-motion for summary judgment is denied,

and the plaintiff’s claims are dismissed.




3
        Moreover, as the defendant points out, the record demonstrates that the OER at issue was not the
only less-than-stellar OER from that time period. Def.’s Opp’n at 16.
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                                      V. CONCLUSION

       For the reasons stated above, the Court grants the defendant’s motion to dismiss, or in the

alternative, for summary judgment, and denies the plaintiff’s cross-motion for summary

judgment. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 26th day of September, 2013.


                                                                 RUDOLPH CONTRERAS
                                                                 United States District Judge




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