223 F.3d 789 (D.C. Cir. 2000)
George E. Cone, Jr., Appelleev. Louis Caldera, Secretary of the Army, Appellant
No. 99-5110
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2000Decided September 12, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cv00168)
Fred E. Haynes, Assistant U.S. Attorney, argued the cause  for appellant.  With him on the brief were Wilma A. Lewis,  U.S. Attorney, and Michael J. Ryan and R. Craig Lawrence,  Assistant U.S. Attorneys.
John A. Wickham argued the cause and filed the brief for  appellee.
Before:  Williams, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
George E. Cone, Jr. filed suit in  United States District Court challenging the Army's refusal  to amend his Officer Evaluation Report.  The court concluded  that the Army's refusal was arbitrary and capricious, and  directed the Army to improve Cone's rating.  We reverse.


2
* Cone served as a captain in the United States Army and  commanded an infantry company during the Persian Gulf  War.1  After the war, his supervisors completed an Officer  Evaluation Report (OER) assessing his performance from  June 14, 1990 to June 13, 1991.  An OER is used to evaluate  an officer's performance and career potential.  See Army  Regulation 623-105, at p 1-6(a) [hereinafter AR 623-105].  At  least two of the officer's superiors prepare the report--a "rater" who directly supervises the officer and a "senior  rater" higher in the chain of command. Id. p 3-1.  Cone's  rater was his battalion commander, Lt. Colonel Stephen S.  Smith.  His senior rater was his brigade commander, Colonel  James C. Riley.


3
The OER form contains blanks that require the rater and  senior rater to provide both numerical and narrative assessments.  Part VII of the form is reserved for the senior rater,  who evaluates the officer "by comparing the rated officer's  potential with all other officers of the same grade."  Id.  p 4-16(b).  In Part VII(a), the senior rater is to check one of  ten blocks that rank the officer's potential against that of all  other officers of that grade.  According to Army regulations,  the evaluation is "based on the premise that in a representative sample of 100 officers of the same grade or grade  grouping (Army-wide), the relative potential of such a sample  will approximate a bell-shaped normal distribution pattern."Id.2  This means, the regulations continue, "that in


4
a representative sample of 100 officers of the same grade or grade  grouping (Army-wide) only one officer can reasonably be  expected to be placed in the top block."  Id. p 4-16(c).Slightly more officers may be ranked in the second block,  which represents the top 2-3% of Army officers of that grade,  and so on.  In a representative sample of 100, it is expected  that the majority of officers will be rated in the two middle  blocks.  See J.A. at 147 (illustrative OER form).  The senior  rater must also write narrative comments addressing the  officer's performance in Part VII(b) of the OER.  See AR  623-105, at p 4-16(d)(2), (3).3


5
Once completed, the Army compares the senior rater's  assessment of the officer to the senior rater's rating history  for all officers of the same grade--known as the senior rater's  "profile."  Id. pp 2-5, 4-16(d)(5)(a).  "The purpose of the  profile is to place the rated officer's OER in perspective by  revealing the senior rater's general rating tendency."  Id.  p 4-16(d)(5)(a).  By comparing a specific OER to the profile,  the Army can discern whether a particular officer performed  above, at, or below the "center of mass"--i.e., the median  ranking--of the officers ranked by the same senior rater.


6
In completing Cone's OER, senior rater Riley checked the  second block from the top.  Of eleven captains rated by Riley  during this period, he ranked seven in the top block, three  (including Cone) in the second block, and one in the third  block.  See J.A. at 147.  According to this profile--which was  included in Cone's OER--Riley's center-of-mass ("COM") was the top block.  Cone's rating was therefore below centerof-mass for the group even though he was rated in the  second-highest block, which corresponds to the top 2-3% of  captains Army-wide.


7
Cone appealed his OER to the Officer Special Review  Board (OSRB), which is charged with reviewing requests to  correct erroneous military records.  See AR 623-105, at  p 9-2(i).  He contended that "[t]he senior rater blocking ...  does not accurately portray my potential and may penalize  me when viewed by future boards."  J.A. at 144.  As support  for this assertion, he supplied affidavits from Riley and Smith  indicating that Riley "did not intend for [Cone's] OER to  reflect below center of mass performance," and acknowledging that Riley had failed "to tightly manage" his senior  rater profile.  Id. at 150.


8
The Special Review Board denied Cone's request.  See  OSRB Decision at 4 (July 2, 1993) (J.A. at 143).  The Board  rejected the affidavit from Riley, noting that Army regulations preclude "statements from rating officials that they did  not intend to evaluate as they did from serving as the basis  for favorable action on appeals."  Id.;  see AR 623-105, at  p 5-32(b)(2), App. p N-2(b)(3).  The Special Review Board  also noted that Riley had submitted "virtually identical"  memoranda in support of appeals by five other captains he  had similarly rated below center-of-mass.  1993 OSRB Decision at 2 (J.A. at 141).4  Although the Board recognized that  there "was a persistent failure by the [senior rater] to manage his profile for [captains] in such a way as to preclude any  unintended below-COM ratings," it concluded that Cone had  failed to adduce "clear and convincing evidence" (as required  by the regulations) to rebut the "presumption of regularity"  in the OER.  Id. at 3-4 (J.A. at 142-43) (citing AR 623-105,  at p 5-32).


9
Relying on new statements from his rater and senior rater,  Cone once again appealed to the Special Review Board and  the Board once again denied Cone's request.  See OSRB  Decision (July 29, 1994) (J.A. at 158-60).  In particular, the  Board rejected Cone's claim that the comments Riley wrote  in the narrative portion of the OER supported a center-ofmass rating.  Those words, the Special Review Board said,  "are not comparable to" what Riley wrote regarding "other  officers [whom] he did in fact place in the top block COM." Id.  Specifically, the Board noted that Riley characterized  Cone as having "solid potential," while he described those he  placed in the top block as having "unlimited" or "outstanding  potential."  Id.  Similarly, while Riley's recommendation regarding Cone was "promote to major and consider for [Command and General Staff College] when eligible," for the  others it was "promote to major and select for [Command and  General Staff College] ASAP."  Id. (emphasis added).


10
Cone next appealed to the Army Board for Correction of  Military Records.  See 10 U.S.C. § 1552(a)(1).  Based on the  same evidence, Cone urged amendment of his OER to reflect  a center-of-mass rating.  The Correction Board rejected his  appeal, concluding that, despite Riley's inability "to establish  a ... profile for captains that approximated a bell-shaped  normal distribution," Cone's rating accurately captured Riley's assessment of Cone's performance compared to that of  other officers of the same grade.  Correction Board Decision  at 4 (Apr. 26, 1995) (J.A. at 128).  The Board noted that its  conclusion was also "supported by the type of comments used  by the [senior rater] to distinguish between a top block officer  and a two block officer."  Id.


11
After losing before the Correction Board, Cone filed suit in  the United States District Court for the District of Columbia,  alleging that the Board's denial of his request violated the  Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and asking the court to correct his records.5  Specifically, Cone argued that Army regulations require a senior rater to rank  officers along a bell-shaped curve, and that Riley's failure to  maintain a profile hewn to that curve constituted arbitrary  and capricious action.  Although the district court found that  the regulations "do not mandate that each senior rater maintain a bell-shaped-curve distribution," Cone v. Caldera, 46  F. Supp. 2d 3, 6 (D.D.C. 1999) (internal quotation omitted), it  nevertheless held the Army's ranking arbitrary and capricious, see id. at 7.  After undertaking a statistical analysis,  the court determined that "[t]he senior rater's ranking of  seven captains in the top block is more than twenty standard  deviations above the expected value," and that "the center of  mass of an eleven-officer profile" could not "reasonably be  located in the top block."  Id. at 6-7.  This, the court said,  indicated that the Army had acted arbitrarily and capriciously  in declining to amend Cone's OER "to reflect a center of  mass rating."  Id. at 7.  The court ordered the Army to make  the necessary amendment, see id., and the Army appealed.

II

12
The Secretary of a military department, acting through a  civilian board, "may correct any military record of the Secretary's department when the Secretary considers it necessary  to correct an error or remove an injustice."  10 U.S.C.  § 1552(a).  An officer's OERs are presumed to be "administratively correct" and to "[r]epresent the considered opinions  and objective judgment of the rating officials at the time of  preparation."  AR 623-105, at p 5-32.  An officer seeking a  correction must prove "clearly and convincingly" that the  "presumption of regularity" in the preparation of administrative records should not apply, and that "[a]ction is warranted  to correct a material error, inaccuracy, or injustice."  Id.  p 9-7(a) (citing id. p 5-32);  see Frizelle v. Slater, 111 F.3d  172, 177 (D.C. Cir. 1997) (noting "strong but rebut- table presumption that administrators of the military, like other  public officers, discharge their duties correctly,lawfully, and  in good faith") (internal quotations omitted).


13
Although we have jurisdiction to review the decisions of the  Correction Board,6 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 F.3d 279, 286 (D.C. Cir. 1995).7This deferential standard is calculated to ensure that the  courts do not become a forum for appeals by every soldier  dissatisfied with his or her ratings, a result that would  destabilize military command and take the judiciary far afield  of its area of competence.  See 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.").  We review de novo the district court's  ruling, on cross-motions for summary judgment, that the  Correction Board acted arbitrarily and capriciously in this  case.  See Frizelle, 111 F.3d at 176;  Kidwell, 56 F.3d at 286.


14
Cone contends that Riley's failure to adhere to a bell-curve  distribution, and the Army's refusal to correct that failure,  constituted arbitrary and capricious agency action in violation  of Army regulations.  The regulations, however, do not require adherence to a bell-shaped curve;  rather, they state a  "premise" upon which senior raters are to base their evaluations:


15
The senior rater's evaluation is made by comparing the rated officer's potential with all other officers of the same grade, or grade groupings....  His or her evaluation is based on the premise that in a representative sample of100 officers of the same grade or grade grouping (Army-wide), the relative potential of such a sample will approximate a bell-shaped normal distribution pattern.


16
AR 623-105, at p 4-16(b).  As the district court itself said,  this regulation does "not mandate that each senior rater  maintain a bell-shaped-curve distribution" in each rating period.  Cone, 46 F. Supp. 2d at 6 (internal quotation omitted).8 Nonetheless, the district court concluded that Riley's rankings of his eleven officers departed so radically from what  statistically would have been expected as to prove that Riley  "violated p 4-16 in rating at least some of the other captains  against whom Cone was compared."  Id.  To reach this  conclusion, the district court applied a test of statistical  significance to the distribution of Riley's rankings of the  eleven captains.  See id. at 6 & n.1.


17
Even without a statistical analysis, it is clear that Riley was  lax in following the rating guidelines.  The Special Review  Board itself determined that, over a series of rating periods,  Riley exhibited "a persistent failure ... to manage his profile  for [captains] in such a way as to preclude any unintended  below-COM ratings."  1993 OSRB Decision at 3 (J.A. at 142).But Riley's inability to adhere to a bell-curve distribution is  not sufficient to render arbitrary the Army's refusal to correct Cone's record.  The Army anticipates, and compensates  for, the fallibility of individual raters by requiring that each  rater's personal profile (indicating the number of officers he  or she has placed in each box during the rating period) be  included in the OER of each officer he or she reviews.  As the regulations state, "[t]he purpose of the profile is to place  the rated officer's OER in perspective by revealing the senior  rater's general rating tendency."  AR 623-105, at  p 4-16(d)(5)(a).  Put more bluntly, "[t]he profile is meant to  be an indicator of the senior rater's tendency to inflate or  deflate ratings."  Id. p 9-7(f).  Hence, anyone examining the  OER to determine the true ability of the officer can take into  account whether his ratings have been rendered by an "easy"  or "hard" grader.  This is a reasonable response to the  problem, and one which makes the Correction Board's refusal  to amend Cone's OER reasonable as well.


18
Moreover, we would be hard pressed to find a reversible  "error" in Cone's record even without the clarification provided by the senior rater's profile.  Under the regulations, the  senior rater's obligation is to compare "the rated officer's  potential with [that of] all other officers of the same grade"  Army-wide.  Id. p 4-16(b).  The rating box in which Cone  was placed represents the top 2-3% of all Army officers of  the same rank.  There is no evidence in the record that  Cone's true abilities place him in the only higher category--a  category reserved for the Army's top 1%.  See id. p 4-16(c).Indeed, the principal flaw to which Cone points--Riley's  inability to adhere to a bell curve--indicates only that Riley  tended to inflate his officers' ratings above the curve:  he  consistently placed most of his officers in the top few boxes  on the rating chart, despite the instruction that those boxes  be reserved for the top few percent of all officers in the  Army.  See,e.g., 1993 OSRB Decision at 3 (J.A. at 142)  (noting profile periods in which Riley gave top-block ratings  to 22 of 61, 12 of 19, 6 of 11, and 26 of 32 captains).  Although  this could suggest that Cone's ranking should not have been  as high as the one Riley gave him, it certainly does not  establish that he should have been ranked even higher.9


19
In support of the contention that he was misrated, Cone  offers a post-evaluation affidavit in which Riley states that he  "did not intend for [Cone's] OER to reflect below center of  mass performance."  J.A. at 150.  But the Correction Board  reasonably refused to credit the affidavit on the basis of  Army regulations providing that "[s]tatements from rating  officials that they did not intend to rate [an officer] as they  did" will "not be used to alter or withdraw a report."  AR  623-105, at p 5-32(b)(2);  see id. App. p N-2(b)(3).  The rationale for these regulations is an understanding that raters  may attempt to retract otherwise accurate assessments when  requested to do so by their disappointed officers.  Such posthoc statements by rating officials, the regulations explain,  "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 the contested  report." Id. The Correction Board's refusal to credit Riley's  affidavit is particularly reasonable in this case, given that  Riley had submitted "virtually identical" memoranda in support of the appeals of many other captains who likewise  challenged the below center-of-mass ratings he gave them  during the same time period.  1993 OSRB Decision at 2 (J.A.  at 141).  The Board reasonably regarded these memoranda  as reflections of Riley's sympathy for the pleas of his subordinates, rather than as accurate statements of his original  intent.


20
Cone also asks us to consider affidavits, authored by senior  Army officers, that contend that the adjectives Riley used to  describe him in the narrative section of the OER indicate a  center-of-mass rating.  See J.A. at 96-99.  Both affidavits  were written in November of 1998--after the district court  complaint was filed and long after the close of the administrative proceedings.  Because the affidavits were not part of the  administrative record, we may not consider them on appeal.See Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284-86 (D.C. Cir. 1981);  see also Camp v. Pitts, 411 U.S.  138, 142 (1973).  In any event, the affidavits are neither  sufficiently specific, nor sufficiently authoritative, to affect the  result here.10


21
In conclusion, we observe that the district court's remedial  order reveals just what a quagmire we would enter were we  to uphold Cone's challenge to his OER.  The court directed  the Army to amend Part VII(a) of Cone's report "to reflect a  center of mass rating."  Cone, 46 F. Supp. 2d at 7.  But how  should it be amended?  Cone interprets the court's mandate  as requiring that he be given a top-block rating, see Cone Br.  at 34-35, as do we.11  Yet, as already noted, there is no  evidence that Cone qualifies as one of the Army's top 1%.Moreover, even if Riley were guilty of rampant grade inflation, there is no evidence that the seven officers to whom  he gave top-block rankings still did not merit higher rankings  than Cone.  Thus, if Cone were moved to the top block to  achieve a center-of-mass result, would not those seven officers  have grounds for appeal, complaining that their own comparative positions had been unfairly deflated?  Indeed, would not  the same be true for all captains, Army-wide, whose senior raters had placed them in the top block?  The knowledge that  "correcting" Cone's grades would ultimately require us to  reassess the relative rankings of his entire cohort--a task for  which a court is spectacularly unsuited--only further confirms the wisdom of deferring to the reasonable judgment of  the Correction Board.  See Kreis, 866 F.2d at 1514 ("[T]he  alteration of a record may correct one injustice only to  commit another, or perhaps only to incur some other equally  significant institutional cost.  All such balancing of considerations is to be done by the Secretary, free of judicial second guessing.");  see also Sargisson v. United States, 913 F.2d  918, 922 (Fed. Cir. 1990) ("A court lacks the special expertise  needed to review reserve officers' records and rank them on  the basis of relative merit.").

III

22
At bottom, Cone argues not that he was graded too low in  comparison to all officers of his rank, but that he did not get  the full benefit of his superior's inflated grading curve.  Because we conclude that this does not constitute cause for  requiring the Correction Board to amend Cone's evaluation  report, we reverse the decision of the district court.



Notes:


1
 Cone was promoted to major in October of 1996.


2
 In a normal distribution, most of the data points are "clustered near the mean, and the density or relative frequency of the  numbers decreases with increasing distance from the mean."David W. Barnes & John M. Conley, Statistical Evidence in  Litigation 140 (1986).  "If the frequencies with which the numbers  in the normal population appear as the result of random experiments are plotted on a graph, the figure resembles a bell-shaped  curve."  Id.


3
 The Army has recently altered its regulations and OER form,  and has dispensed with the ten-block rating system.  See Army  Regulation 623-105 (Apr. 1, 1998);  DA Form 67-9 (Apr. 1, 1998).The citations in this opinion refer to the regulations and forms that  were in effect at the time of Cone's evaluation.


4
 The Special Review Board further found that of nine below  center-of-mass ratings made by Riley and processed by the Army  between August 1990 and February 1992, he supported or offered  to support appeals by at least seven of the subject officers.  See  1993 OSRB Decision at 3 (J.A. at 142).


5
 Cone also challenged his non-selection to the Command and  General Staff College, a challenge the district court found non-reviewable.  See Cone v. Caldera, 46 F. Supp. 2d 3, 7-8 (D.D.C. 1999).  Cone has not pressed this claim on appeal, apparently  because it became moot due to his subsequent selection to the  College.  See Cone Br. at 4.


6
 See Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1512  (D.C. Cir. 1989) (citing Chappell v. Wallace, 462 U.S. 296 (1983));see also Frizelle, 111 F.3d at 176;  Dickson v. Secretary of Defense,  68 F.3d 1396, 1401-02 & n.6 (D.C. Cir. 1995);  Kidwell v. Department of the Army, 56 F.3d 279, 283-86 (D.C. Cir. 1995).


7
 Cone's appellate brief asserts that his incorrect OER also  violated his rights under the Privacy Act, 5 U.S.C. § 552a(e)(5).Neither Cone's complaint nor the district court's opinion addresses  such a claim, and we therefore do not consider it here.


8
 See also Cone, 46 F. Supp. 2d at 6 ("The Army correctly notes  that ... 'since there are thousands of captains in the Army, it is  statistically possible that a particular senior rater may have a  number of captains that he or she is senior rating that merit  placement in the top block."') (quoting Def.'s Resp. to Pl.'s Statement of Facts p 41).


9
 Cone notes that Riley wrote on the OER:  "This evaluation  does not reflect a downturn in performance, rather I have restarted  my profile."  J.A. at 147.  Army regulations permit a rater to  restart his profile when necessary to convey his intended evaluation  to selection boards and personnel managers.  See AR 623-105, at  p 3-12.1.  Although Riley's comment means that Cone's second  block rating should not be regarded as a downturn in Cone's own  performance, it says nothing about where he ranks in comparison  with his peers.


10
 By the same token, we decline to give any weight to the  Special Review Board's conclusion that the words Riley used in  Cone's OER were "not comparable" to the words he used to  describe other officers whom "he did in fact place in the top block  COM."  1994 OSRB Decision (J.A. at 159).  The Army successfully  argued below that the court should deny Cone discovery of the  OERs of the other officers upon which this comparison was based,  even in redacted form, on the ground that they were not part of the  administrative record before the Correction Board.  See Cone v.  Caldera, 46 F.Supp.2d 3, 4-5 (D.D.C. Aug. 21, 1998) (J.A.  at 33-34).  But if that is true, then the comparisons cannot provide  substantial evidence to support the Board's decision.  On the other  hand, if the comparisons were before the Board, by keeping them  out of the appellate record the Army has deprived this court of any  basis for concluding that the Board's characterizations are valid.


11
 The other alternative--lowering the ratings of some officers  now in the top block in order to make the second block the center of-mass--would only further complicate the problem discussed in  the following text.


