                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
NICHOLAS STEWART,                   )
                                    )
                        Plaintiff,  )
                                    )
        v.                          )                Civil Action No. 14-0479 (ABJ)
                                    )
RICHARD V. SPENCER,                 )
Secretary of the Navy,              )
in his official capacity,           )
                                    )
                        Defendant.  )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Nicholas Stewart, a Captain of the United States Marine Corps, filed this action

against the Secretary of the Navy in his official capacity, challenging, among other things, the

Secretary’s denial of his request for an Aviation Career Incentive Pay (“ACIP”) flight gate

waiver. 1 On May 1, 2017, the Court ruled that since the Secretary had not set forth the reasons

for his action, the Court could not find it to be reasonable and supported by the record.

Therefore, it remanded the matter to the Secretary for further consideration and clarification.

       On remand, the Secretary again denied plaintiff’s flight gate waiver request. Presently

before the Court is plaintiff’s second motion for summary judgment, in which plaintiff argues

that the Secretary acted arbitrarily and capriciously in his denial. Defendant has filed a cross-




1      Plaintiff also challenged decisions made by the Acting Assistant Secretary of the Navy,
including the decision to reverse recommendations from the Board for Correction of Naval
Records and the remedy crafted to address lost promotion opportunities. See Pl.’s First Mot. for
Summ. J. [Dkt. # 37] at 23–37. This Court upheld these decisions. See Stewart v. Stackley, 251
F. Supp. 3d 138, 158–61 (D.D.C. 2017).
motion for summary judgment asserting that the Secretary’s decision is entitled to deference, and

that it was in accordance with the applicable laws and regulations.

       After reviewing the parties’ motions, including the attachments thereto, the

administrative record, and the relevant authorities, the Court will grant defendant’s motion for

summary judgment, and plaintiff’s motion will be denied. While plaintiff is understandably

chagrined by the decision, given all of the circumstances, the Court cannot conclude that there is

any basis to overturn this decision that fell within the Secretary’s discretion to make.

                                         BACKGROUND

       I.      Governing Law and Regulations

       “A member of a uniformed service” is entitled to “aviation career incentive pay . . . for

the frequent and regular performance of operational or proficiency flying duty required by

others.” 37 U.S.C. § 301a(a). Aviation Career Incentive Pay (“ACIP”) is “restricted to regular

and reserve officers who hold, or are in training leading to, an aeronautical rating or designation

and who engage and remain in aviation service on a career basis.” Id. § 301a(a)(2). Under this

statute, “an officer must perform the prescribed operational flying duties . . . for 8 of the first 12,

and 12 of the first 18 years of the aviation service of the officer” to be eligible for continuous

monthly incentive pay. Id. § 301a(a)(4). The “screening point at the end of specific periods of

aviation service (normally at the 12 and 18-year marks) used to determine eligibility for

continuous ACIP” is called a “flight gate.”           Secretary of the Navy Instruction 7220.87

(“SECNAVINST”) Enclosure (1), ¶ 7.

       The Secretary of the Navy “may permit, on a case by case basis, an officer to continue to

receive continuous monthly incentive pay despite the failure of the officer to perform the

prescribed operational flying duty requirements during the prescribed periods of time so long as

the officer has performed those requirements” for at least six years of aviation service.

                                                  2
37 U.S.C. § 301a(a)(5); see also SECNAVINST 7220.87 ¶ 4 (“The Aviation Career

Improvement Act of 1989 authorized the Secretary of the Navy . . . to waive ACIP flight gate

requirements for aviators who are unable to meet their flying gates due to reasons beyond their

control.”). This action is typically called a “flight gate waiver.” See generally SECNAVINST

7220.87.

       Once a request for a waiver has been submitted, the waiver package is routed through the

chain of command to the Secretary of the Navy. SECNAVINST 7220.87 ¶¶ 5(b), (d). Once the

waiver package is received by the Assistant Secretary of the Navy (Manpower and Reserve

Affairs), “the flight gate waiver request package will be reviewed for content, validity, and

rationale and forwarded to [the Secretary of the Navy] with a recommendation to approve,

disapprove, or to be returned to Navy or Marine Corps for further action.” Id. ¶ 5(e).

       II.     Factual and Procedural Background

       The factual and procedural background of this case are laid out in detail in the Court’s

Memorandum Opinion granting in part and denying in part defendant’s original motion for

summary judgment. Stewart, 251 F. Supp. 3d at 141–55. Therefore, the Court will address the

facts only briefly here.

       Plaintiff Nicholas Stewart has served in the United States Marine Corps since 2001, when

he graduated from the Naval Academy. Second Am. Compl. [Dkt. # 31] ¶¶ 5–6 (“Second Am.

Compl.”). 2 Between 2005 and 2008, plaintiff participated in air combat operations, including

Operations Iraqi Freedom and Enduring Freedom. Id. ¶ 10.

       On December 12, 2008, while serving as a Captain in the Marine Corps, plaintiff was

charged with aggravated sexual assault and aggravated assault. Second Am. Compl. ¶ 14.

2     Plaintiff filed his original complaint on March 21, 2014. Compl. [Dkt. # 1]. He filed an
amended complaint on June 3, 2015, Am. Compl. [Dkt. # 19], and filed his second amended
complaint on January 18, 2016. Second Am. Compl.
                                                3
Plaintiff successfully moved to sever the charges, and he was subsequently acquitted of

aggravated assault, but convicted of aggravated sexual assault. Id. ¶¶ 21–22. Plaintiff was

sentenced to total forfeiture of pay and allowances, two years confinement, and a dismissal.

Id. ¶ 23. He appealed the conviction to the United States Court of Appeals for the Armed

Forces, and the court found that his second trial violated the Double Jeopardy Clause of the Fifth

Amendment. Id. ¶¶ 27–30. On April 23, 2012, the court set aside the conviction and sentence

and dismissed the charge with prejudice. Id. ¶ 30.

       On January 9, 2014, plaintiff requested a waiver of the flying requirement necessary to

achieve the “Gate 1 flight gate” and retain his ACIP. Admin. Record [Dkt. # 34] (“AR”) at

1556–57. The request summarized his flight data, showing that he had achieved a total of 72

months of flying (“MOF”) out of the necessary 96. AR 1556. On his waiver application, he

attributed his inability to meet the flying requirement to the unconstitutional conviction, and

stated that but for those circumstances, he “would have been able to accumulate the 23 months of

flying duty required” to reach Gate 1. AR 1557. The Marine Corps endorsed plaintiff’s request,

AR 1554–55, and on February 21, 2014, the Deputy Commandant, Manpower and Reserve

Affairs (“M & RA”), sent an action memo to the Secretary of the Navy “strongly

recommend[ing] approval.” AR 1551. The Assistant Secretary of the Navy (M & RA), though,

sent an action memo to the Secretary recommending disapproval of the application, in which he

noted that plaintiff was set to be discharged because he twice failed to achieve promotion. 3 AR

1514–15; AR 1547. On April 15, 2014, the Secretary denied plaintiff’s request for flight gate

waiver. AR 1513; AR 1550.


3      According to 10 U.S.C. § 632(a), an officer of the Marine Corps who has twice failed to
achieve promotion to the next higher grade must be separated from the Marine Corps. This
sanction was later eliminated, and plaintiff has not been forced to separate from the Marine
Corps.
                                                4
       On November 4, 2014, plaintiff submitted a second request for a waiver of the MOF

requirement. AR 1450–52. Again, the Marine Corps endorsed the request, and the Deputy

Commandant recommended approval. AR 1446–49. This time, the Assistant Secretary’s action

memo to the Secretary stated that plaintiff’s “waiver request [was] within norms and

appropriate,” and that plaintiff was no longer facing a discharge. AR 1442–43. But on February

12, 2015, the Secretary of the Navy disapproved plaintiff’s second request for a flight gate

waiver. AR 1439. The Secretary did not set forth any reasons for his decision. Id.

       On January 18, 2016, plaintiff filed his second amended complaint in this lawsuit,

challenging three decisions made by the Secretary of the Navy, only one of which is relevant

here: the claim that the Secretary acted arbitrarily and capriciously in denying the second request

for the flight gate waiver. Second Am. Compl. ¶¶ 56–57 (Count 1). Both parties moved for

summary judgment. See Def.’s Mot. for Summ. J. [Dkt. # 35]; Pl.’s Cross-Mot. for Summ. J.

[Dkt. # 37]. After reviewing the record, the Court found that because the Secretary did not

provide a “rational connection between the facts found and the choice made,” the decision was

arbitrary and capricious. Stewart, 251 F. Supp. 3d at 156–57.       The Court denied defendant’s

motion for summary judgment as to this count, and on May 1, 2017, remanded the decision to

deny plaintiff’s ACIP flight gate waiver request to the Secretary of the Navy for further

consideration. Id.

       On December 19, 2017, the Secretary of Navy denied plaintiff’s request for ACIP flight

gate waiver for a third time. See Secretary of the Navy Memo [Dkt. # 56-1] (“Sec’y Memo”).

The Secretary found that “approving this request does not meet the needs of the service.” Id. ¶ 2.

He stated that “Captain Stewart’s entitlement to ACIP ended when, upon reaching 12 years of

service, he had not completed 9 years of prescribed operational flying duties.” Id. To be eligible



                                                5
for a waiver, one must have not less than six years of qualifying service, and the Secretary

observed that plaintiff had barely met the requirement because he had completed only six years

and fifteen days of aviation service. Id. Thus, according to the Secretary, plaintiff’s qualifying

duties are almost three years short of the statutory entitlement to ACIP. Id. The Secretary

observed that plaintiff’s failure to accumulate the necessary experience was not entirely

attributable to the pendency of the criminal proceedings, and he pointed to the fact that plaintiff

“was not in flight status” between June 5, 2008 and September 18, 2009, and between April 12,

2012 and November 4, 2014. 4 Id. ¶ 4. Finally, the Secretary observed that he was not inclined

to exercise his discretion to grant a waiver because plaintiff’s personnel records revealed that

plaintiff has consistently ranked in the bottom two-thirds of his peer group and has been

evaluated as performing better than only about 18% of his peers. Id. ¶ 5.

       On May 24, 2018, plaintiff moved for summary judgment claiming that the Secretary

acted arbitrarily and capriciously and contrary to law in rendering his decision. See Mem. in

Supp. of Pl.’s Mot. for Summ. J. [Dkt. # 55] (“Pl.’s Mem.”). On June 15, 2018, defendant

opposed the motion and filed a cross-motion for summary judgment in its favor. See Mem. in

Supp. of Def.’s Cross-Mot. for Summ. J. [Dkt. # 56] (“Def.’s Mem.”).

                                  STANDARD OF REVIEW

        Summary judgment is appropriate when the pleadings and evidence show that “there

 is no genuine dispute as to any material fact and [that] the movant is entitled to judgment

 as a matter of law.” Fed. R. Civ. P. 56(a). However, in cases involving review of agency



4       These dates flank the time period encompassing plaintiff’s sentencing and appeal. On
September 18, 2009, plaintiff was sentenced for committing aggravated sexual assault. Second
Am. Compl. ¶ 23. Plaintiff was then taken into custody to serve his sentence, during which he
started the appeals process. The conviction was dismissed on March 6, 2012. Id. ¶ 30. Plaintiff
was ordered back to active duty soon after the dismissal. Id. ¶ 31.
                                                6
 action under the Administrative Procedure Act (“APA”), Rule 56 does not apply due to the

 limited role of a court in reviewing the administrative record. Select Specialty Hosp.-Akron,

 LLC v. Sebelius, 820 F. Supp. 2d 13, 21 (D.D.C. 2011). Under the APA, the agency’s role

 is to resolve factual issues and arrive at a decision that is supported by the administrative

 record, and the court’s role 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.” Occidental

 Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985), citing Citizens to Preserve Overton

 Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); see also Richards v. INS, 554 F.2d 1173, 1177

 & n.28 (D.C. Cir. 1977).

       Under the APA, a court must “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A), “in excess of statutory jurisdiction,” id.

§ 706(2)(C), or “without observance of procedure required by law.” Id. § 706(2)(D). The

scope of review is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983). The agency’s decision is presumed to be valid, see

Citizens to Preserve Overton Park, 401 U.S. at 415, and the court must not “substitute its

judgment for that of the agency.” State Farm, 463 U.S. at 43.

       An agency’s decision is arbitrary and capricious if it “relied on factors which Congress

has not intended it to consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the agency, or is

so implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Id. The court must, however, “uphold a decision of less than ideal clarity if the




                                                7
agency’s path may reasonably be discerned.” Id., citing Bowman Transp., Inc. v. Ark.-Best

Motor Freight Sys., 419 U.S. 281, 286 (1974).

       A court must be satisfied, though, that the agency has examined the relevant data and

articulated a satisfactory explanation for its action, “including a ‘rational connection between

the facts found and the choice made.’” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir.

2006), quoting State Farm, 463 U.S. at 43. Moreover, the “agency must cogently explain why it

has exercised its discretion in a given manner . . . and that explanation must be sufficient to

enable [a court] to conclude that the agency’s action was the product of reasoned

decisionmaking.” Id., quoting State Farm, 463 U.S. at 48, 52.

       Decisions of the Secretary of the Navy may be reviewed under the arbitrary and

capricious standard of the APA. Turner v. Dep’t of Navy, 325 F.3d 310, 313–14 (D.C. Cir.

2003). “[T]he broad grant of discretion the Congress gave the Secretary” to evaluate a flight

gate waiver application, compels review of such a decision under an “unusually deferential

application of the arbitrary or capricious standard of the APA.” Roberts v. United States, 741

F.3d 152, 158 (D.C. Cir. 2014), citing Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C.

Cir. 1989). The Court need only determine “whether the Secretary’s decision making process

was deficient, not whether his decision was correct.”               Kreis, 866 F.2d at 1511.

“This deferential standard is calculated to ensure that the courts do not become a forum for

appeals” for every military member, “a result that would destabilize military command and take

the judiciary far afield of its area of competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C.

Cir. 2000).

                                           ANALYSIS

       The Secretary’s decision to deny plaintiff’s request for a flight gate waiver was not

arbitrary or capricious, nor was it contrary to law or pertinent regulations. While the Secretary’s

                                                8
previous decision lacked any explanation, AR 1439, here the Secretary has explained in detail

why he decided to deny plaintiff’s request for a flight gate waiver, and his decision is entitled to

great deference.    Plaintiff argues, though, that the Secretary’s decision should be vacated and

remanded for three reasons: 1) the Secretary acted contrary to law, applicable regulations, and

this Court’s order when he asked the Deputy Commandant for a new recommendation without

returning the case to the chain of command; 2) the Secretary erred as a matter of law when he

failed to address plaintiff’s assignment history; and 3) the Secretary’s analysis of plaintiff’s

personnel records was based on unreliable factors. These arguments fail for the reasons set forth

below.

         I.     The Secretary was not required to obtain new chain of command
                endorsements on remand.

         Plaintiff objects to the fact that the Secretary sought a fresh recommendation from the

Deputy Commandant (M & RA) 5             after the remand, and he argues that this somehow

contravened the Court’s order to reconsider plaintiff’s request. Pl.’s Mem. at 12–13. But

plaintiff does not cite to any rule or support for his contention that the Secretary cannot exercise

his discretion to obtain another recommendation from a subordinate to aid in his decision-

making process. Indeed, the D.C. Circuit has recognized that a decision-maker may gather

additional information on remand. See PPG Indus., Inc. v. United States, 52 F.3d 363, 366 (D.C.

Cir. 1995) (“[T]here is no principle of administrative law that restricts an agency from reopening

proceedings to take new evidence after the grounds upon which it relied are determined by a

reviewing court to be invalid.”).       The Secretary’s action here cannot be characterized


5       The Court notes that the Deputy Commandant did not actually recommend that the
Secretary reject the application; he recommended “[t]hat the Secretary of the Navy reconsider a
12 year ACIP MOF Gate 1 Waiver in the case of Captain Stewart.” Encl. 1 to Pl.’s Mem.
[Dkt. # 55-1] (“DC Action Memo”) at 2.


                                                 9
as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, because

it is in “the agency’s discretion to decide how, in light of internal organizational considerations,

it may best proceed upon remand.” New Life Evangelistic Ctr., Inc. v. Sebelius, 753 F. Supp. 2d

103, 115 (D.D.C. 2010), citing Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S.

326, 333 (1976) (per curiam).

       Plaintiff also maintains that if the Secretary determined that “a new endorsement” was

required, “then the case should have been returned to the chain of command, which is a required

process under regulation.” Pl.’s Mem. at 13. Navy regulation states that “packages forwarded to

SECNAV for approval must be endorsed by the chain of command.” SECNAVINST 7220.87

¶ 5(d). A plain reading of the regulation indicates that the chain of command requirement is not

a requirement that the Secretary must fulfill in making his decision. Rather, it is a requirement

that the member must fulfill before his application can be reviewed by the Secretary. AR 1465.

Here, plaintiff fulfilled that requirement, and the package was endorsed by the chain of

command. AR 1446–49. Thus, when the Secretary solicited a new recommendation from the

Deputy Commandant, he was not obligated to return the case to the chain of command. Further,

there is no indication that, in soliciting a new recommendation from the Deputy Commandant,

the Secretary did not consider the full record that included the previous endorsements.

       Plaintiff also argues that the Deputy Commandant’s new recommendation should have

been reviewed by the Assistant Secretary. 6 Pl.’s Mem. at 14, citing SECNAVINST 7220.87

¶ 5(e) (“Once received at [the Assistant Secretary of the Navy], the flight gate waiver request



6      It is unclear whether the Assistant Secretary reviewed the recommendation or not, as the
Deputy Commandant’s action memo was sent to the Secretary of Navy through the Assistant
Secretary, although the Court has not seen any separate Action Memo from the Assistant
Secretary. See DC Action Memo at 2.


                                                10
package will be reviewed for content, validity, and rationale and forwarded to SECNAV . . . .”).

This rule appears to address the handling of requests moving up the chain from a member, and it

is not clear that it has any applicability to a request that has already proceeded through those

channels and has been specifically remanded to the Secretary by a court.

       But, even if one were to conclude that the regulations called for a return to the chain of

command or to the Assistant Secretary, that error was not prejudicial. The APA requires courts

reviewing agency action under the “arbitrary and capricious” standard to take “due account” of

“the rule of prejudicial error.” 5 U.S.C. § 706. As the D.C. Circuit put it, “[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.” PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C.

Cir. 2004).

       Here, the failure to obtain new endorsements through the chain of command, or to submit

the new recommendation through the Assistant Secretary, was not prejudicial error. The record

returned to the Secretary on remand contained the original endorsement of plaintiff’s chain of

command, as well as the approval of the Assistant Secretary. Plaintiff does not specify how

returning the application through the chain of command would have changed the result, nor does

he identify any reason why the Assistant Secretary needed to weigh in again.              And, the

Secretary’s ultimate decision did not refer at all to the Deputy Commandant’s recommendation,

to which plaintiff objects. See generally Sec’y Memo. The Secretary’s decision relied entirely

on independent bases for denial, such as the plaintiff’s assignments before and after the

conviction and reversal (which did not include qualifying flight time), the amount of qualifying

time he has served in flight status, and his personnel records. Id. ¶¶ 3–5. Thus, review by the

Assistant Secretary or the chain of command was “far from essential” to the Secretary’s analysis.



                                                11
New Life Evangelistic Ctr., 753 F. Supp. 2d at 113 (finding that an agency’s decision to

supplement the record with new documents, even if erroneous, was not prejudicial because those

new documents were not essential to the agency’s analysis); Pittsburgh & Lake Erie R. Co. v.

I.C.C., 796 F.2d 1534, 1542–43 (D.C. Cir. 1986) (denying petitioner’s claims of prejudicial error

because it “would not have changed the result”).

       In addition, plaintiff has not demonstrated how this asserted procedural error caused him

actual prejudice; he only makes the conclusory statement that he has been “substantially

prejudiced.”   Pl.’s Mem. at 13; see Olson v. Clinton, 602 F. Supp. 2d 93, 104 (D.D.C.

2009), aff’d, 409 F. App’x 359 (D.C. Cir. 2011) (finding no prejudicial error where plaintiff

“made only the conclusory argument that the [agency’s] decision was ‘tainted’ by ex parte email

communications that were not included in the Administrative Record” but did not state how the

communications tainted the decision).      Therefore, the Court finds that even if the agency

committed procedural error, this error was not prejudicial.

       II.     The Secretary’s alleged failure to address plaintiff’s assignment history does
               not render his decision arbitrary or capricious.

       Plaintiff argues that “the Secretary ignored the facts of plaintiff’s assignment history and

whether the assignments were beyond plaintiff’s control.” Pl.’s Mem. at 16–17.

       First, the record reflects that the Secretary did not ignore the circumstances that kept

plaintiff from flying or fail to consider whether the assignments were beyond plaintiff’s control.

The decision explicitly refers to plaintiff’s “conviction and later acquittal of criminal

misconduct,” and the Secretary did not predicate his decision on any failure to fly during that

time period. Sec’y Memo ¶¶ 3–4. He explained that he was not persuaded that plaintiff would

have been able to meet the required flight time even without this intervening event. See id. ¶ 4




                                                12
(declining to “speculate about how the Marine Corps would have assigned Captain Stewart” and

considering plaintiff’s assignments before his sentencing and after the reversal).

        Second, it is in the Secretary’s discretion to determine whether a flight gate waiver would

meet the needs of the service. As prescribed by paragraph 4 of SECNAV Instruction 7220.87,

“the Secretary of the Navy (SECNAV), for the needs of the service” is authorized “to waive

ACIP flight gate requirements for aviators who are unable to meet their flying gates due to

reasons beyond their control.” And section 301a(a)(5) states that the Secretary “may permit”

such waivers “on a case by case basis.” 37 U.S.C. § 301a(a)(5). Plaintiff suggests that because

the reasons he could not meet the flight gate were beyond his control, he should have been

granted a waiver. But, the statute and regulation do not require the Secretary to issue a waiver in

such a situation; he may deny an application if it does not meet the needs of the service, so long

as he articulates the reasons for the denial. See Leavitt, 460 F.3d at 6. The Secretary has done so

here.

        Furthermore, the Secretary’s explanation here does not “run[] counter to the evidence

before the agency.” Pl.’s Mem. at 17. The Secretary reviewed plaintiff’s conviction and the

reversal by the appeals court, balanced that information with plaintiff’s personnel records and the

amount of qualifying flight time he has fulfilled, and found that the circumstances did not

warrant a flight gate waiver:

        Given the totality of the facts pertaining to Captain Stewart’s ACIP waiver
        request, I have determined a waiver does not meet the needs of the service, and
        his request is denied. Captain Stewart barely meets the requirements of [37
        U.S.C. § 301a] to submit a waiver request, is nearly three years short of qualifying
        service for statutory ACIP entitlement, and neither the content of Captain
        Stewart’s waiver request nor the results of my qualitative review of his personnel
        records provided me with adequate reason to grant a waiver in this case.




                                                13
Sec’y Memo ¶ 6. The fact that the Secretary did not accord the reversal of plaintiff’s conviction

the weight that plaintiff believes it is entitled to receive does not render the decision arbitrary or

capricious since it was accompanied by a “reasoned evaluation of the relevant information.” See

Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 385 (1989). Plaintiff repeatedly points to the prior

recommendations from the Acting Assistant Secretary to approve the application, see, e.g., Pl.’s

Mem. at 13, 15, 16, but “[e]ven if another decisionmaker might have reached a contrary result,”

that does not necessarily signal a “clear error of judgment.” Marsh, 490 U.S. at 385. Given the

level of deference afforded to military decisions, Roberts, 741 F.3d at 158, and in the absence of

clear error, this Court is bound to uphold the Secretary’s decision.

       III.    The Secretary’s use of plaintiff’s personnel records was not arbitrary or
               capricious.

       In making his decision, the Secretary reviewed the personnel records. Sec’y Memo ¶ 5.

He found that “Captain Stewart has been consistently ranked in the bottom two-thirds of his peer

review group by his reporting seniors,” and that “reviewing officers have evaluated him as

performing better than only about 18% of his peers.” Id.

       Plaintiff contends that the Secretary’s reliance on plaintiff’s personnel records was

improper because the numerical values the Secretary used to evaluate him were not reliable.

Pl.’s Mem. at 17–20.      To support this assertion, plaintiff produces a single email from a

Lieutenant Colonel Daniel Dowd, who is described as a “subject matter expert[] . . . regarding

the efficacy and reliability of the Relative Value markings contained on a Marine’s Master Brief

Sheet.” 7 Id. at 18–19. In this email, Lt. Col. Dowd explains that the master brief sheet “tables



7      The Master Brief Sheet provides administrative, training, service data about a Marine,
including a “Performance Evaluation Summary” which includes reviews from the Reporting
Senior and Reviewing Officer. AR 1745.


                                                 14
fail to accurately capture the weight and full meaning of the report.” Id. at 19. Plaintiff also

emphasizes that the “career limbo” that he has been in as a result of the “compounding and

cascading effects of his unlawful conviction and imprisonment” has caused his review markings

to drop below those of his peers through no fault of his own.        Pl.’s Opp. and Reply to Def.’s

Mot. for Summ. J. [Dkt. # 58] (“Pl.’s Reply”) at 11.

       As plaintiff correctly notes, the standard of review applicable here “does not require a

reweighing of the evidence, but a determination of whether the conclusion being reviewed is

supported by substantial evidence.” Pl.’s Mem. at 19, quoting Walker v. Shannon, 848 F. Supp.

250, 255 (D.D.C. 1994). By asking this Court to discount plaintiff’s personnel records as

unreliable based on Lt. Col. Dowd’s opinion, plaintiff is essentially asking the Court to evaluate

how much weight should be accorded to the personnel records — precisely what it cannot do.

See Ind. Mun. Power Agency v. FERC, 56 F.3d 247, 254 (D.C. Cir. 1995) (“Once assured the

[agency] has engaged in reasoned decisionmaking, it is not for [the Court] to reweigh the

conflicting evidence.”).    In the end, plaintiff’s personnel records support the Secretary’s

discretionary determination, AR 1745, and plaintiff has not submitted or pointed to any other

values, indicators, or reports showing that this information is incorrect. 8

       An agency’s decision may also “be arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to consider,” but there is no indication here that

Congress did not intend the Secretary to rely on personnel records. State Farm, 463 U.S. at 43.



8      Plaintiff also objects to the Secretary’s use of these values on the grounds that they were
located in a 2017 Master Brief Sheet, and the Secretary should not have considered performance
evaluations that were not available at the time of the Secretary’s previous denial. Pl.’s Reply at
10–11. But there is no indication that the Secretary used a 2017 Master Brief Sheet, because the
values he refers to are also located within a Master Brief Sheet dated March 25, 2015. AR 1743–
45. Therefore, it was proper for the Secretary to consider these records.


                                                  15
This is the sort of material that would logically inform a decision maker whether the waiver

would meet “the needs of the service,” and it is reasonable for the Secretary to have relied on

them.

        While the Court may have come to a different conclusion based upon the Marine Corps’

endorsement and other factors, the Court cannot put aside a decision that 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.” State Farm, 463 U.S. at 43 (quotation

marks and citation omitted). The “unusually deferential” standard under which the Court must

review the Secretary’s decision compels the Court to find that it was within the Secretary’s

discretion to deny plaintiff a flight gate waiver and to permit the ruling to stand.

                                          CONCLUSION

        For the reasons stated above, the Court will grant defendant’s cross-motion for summary

judgment and deny plaintiff’s motion for summary judgment.


        A separate order will issue.


SO ORDERED.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: November 8, 2018




                                                  16
