197 F.3d 539 (D.C. Cir. 1999)
Carolyn M. Grant, Appellantv.United States Air Force, et al.,Appellees
No. 98-5568
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 1999Decided December 14, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cv02914)
Carol J. Banta argued the cause for the appellant.
Lisa Goldfluss, Assistant United States Attorney, argued  the cause for the appellees.  Wilma A. Lewis, United States  Attorney, and R. Craig Lawrence, Assistant United States  Attorney, were on brief for the appellees.
Before:  Sentelle, Henderson and Garland, Circuit  Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge:


1
Plaintiff Carolyn Grant (Grant) sought to enjoin the United States Air  Force (Air Force) from discharging her from the Air Force  Reserves.  She claimed that, in nonselecting her for reenlistment, the Air Force denied her due process and violated the  Administrative Procedure Act, 5 U.S.C.  702.  The district  court denied Grant's motion for a temporary restraining  order and granted summary judgment to the Air Force.  For  the reasons set forth below, we affirm the district court.

I.

2
Grant had been a civilian Air Reserve Technician and an  enlisted member in the Communications Flight unit of the  459th Airlift Wing, Air Force Reserves, since 1980.  Air  Force regulations required Grant to reenlist within six  months of December 7, 1997, the date of her expiration of  term of service (ETS).1  Grant signed a reenlistment contract  on June 4, 1997,2 three days before the six-month reenlistment window opened.  Although her unit commander, Lieutenant Colonel Brad Buchanan, could have declared her ineligible for reenlistment by nonselecting her before she signed  the reenlistment contract, see Air Force Instruction (AFI)  36-2612  3.5.3, once the reenlistment contract was properly  executed, Buchanan could not nonselect her.  See id.  2.4.


3
The Air Force attempted to void Grant's reenlistment  contract three times.  First, on June 10, Major Ted Covert,  the 459th Airlift Wing Military Personnel Flight Commander,  concluded that Grant's reenlistment contract was invalid because she signed it prematurely.  On August 8 Grant was  informed that Covert had "voided out" her reenlistment contract.  See Complaint p 12.  Grant immediately met with  Covert who informed her that her reenlistment contract had  been removed from her record and that Buchanan had made  the decision to void it.  Under the applicable regulations,  however, neither Covert nor Buchanan was authorized to void  her reenlistment contract.  See AFI 36-2612  4.5.1, 4.5.1.1.Subsequently, on September 18, Chief Master Sergeant Eva  Holland, Director of Military Personnel, 22nd Air Force,  voided Grant's reenlistment contract.  This attempt was also  invalid because Grant had not yet submitted her statement of  circumstance explaining why her contract should not be voided, as she was entitled to do under the regulations.  See id.   4.5.1.1.  Finally, on October 31, Holland again voided  Grant's reenlistment contract after Grant submitted her  statement of circumstance.


4
On September 7 Buchanan nonselected Grant for reenlistment.3  Buchanan notified Grant of her nonselection on September 9 by letter and accompanying package sent certified  mail.4  Grant failed to appeal her nonselection to Military  Personnel Flight before the next Unit Training Assembly, see  AFI 36-2612  3.5.5.1, and therefore waived her right to further review.  Her only challenge to the district court's  grant of summary judgment involves her reenlistment contract which she maintains was not properly voided.5

II.

5
On appeal Grant argues that her reenlistment contract was  valid because the three-day prematurity defect was cured on  June 7 when the six-month period began (the Air Force  having failed to discover the defect until June 10).  We apply  de novo review "[w]here the decision under review is the  district court's assessment of the legal sufficiency of an  agency's action in light of the record."  Dr Pepper/Seven-Up  Cos. v. FTC, 991 F.2d 859, 862 (D.C. Cir. 1993) (quotation  omitted).  "[O]ur review ... is limited to determining whether [the Air Force's] decision is arbitrary and capricious."  Id.  (citation omitted).


6
The record indicates that Grant did not raise her contract  claim before the district court, either in her complaint or in  her opposition to the Air Force's summary judgment motion. At argument Grant maintained that, by explicitly challenging  her nonselection in her complaint, she also challenged by  implication the voiding of her reenlistment contract because  "the nonselection issue which we are not pursuing on appeal  and the contract issue were very closely intertwined."  Transcript of October 20, 1999 Oral Argument 4;  cf. Reply Br. 34.  Although the district court addressed the reenlistment  contract issue, see Memorandum Opinion 2 n.1, 17-18 ("the  plaintiff contends that the Air Force acted arbitrarily and  capriciously when it voided her reenlistment contract"), it is  not clear why the district court mentioned the issue because,  in another footnote, it indicated that it believed the contract  issue had been resolved.  See id. at 9 n.6 ("Grant now  concedes that the Air Force's final decision of October 28  [sic], 1997 to void her reenlistment contract corrected any  procedural defects in the original voiding of the contract.").


7
"Absent 'exceptional circumstances,' the court of appeals is  not a forum in which a litigant can present legal theories that  it neglected to raise in a timely manner in proceedings  below."6  Tomasello v. Rubin, 167 F.3d 612, 618 n.6 (D.C. Cir.  1999).  Nevertheless, assuming without deciding that Grant  properly preserved her contract argument, her challenge fails  on the merits.  The Air Force complied with AFI 36-2612  when Holland voided Grant's reenlistment contract on October 31.  Grant concedes that her reenlistment contract was  voidable, see Petitioner's Br. 12, and that the Air Force  ultimately properly voided the contract.  See Reply Br. 2  (Grant "did not challenge the Air Force's pro forma procedural compliance with its regulations in the third attempt to  void Grant's contract").  She argues, however, that under the  holding in Vitarelli v. Seaton, 359 U.S. 535, 545-46 (1959), the  Air Force's pro forma compliance cannot cure its previous  error.  In Vitarelli the Secretary of the United States Department of the Interior dismissed an employee on September 10, 1954 because his "sympathetic association" with Communist supporters posed a "security risk."  Purporting to act  pursuant to departmental regulations, the Secretary filed a  "Notification of Personnel Action" on September 21, 1954  setting forth the reasons for the employee's dismissal.  The  employee then challenged her termination as illegal and  ineffective because the Secretary had failed to comply with  the regulations applicable to dismissal for national security  reasons.  Two years later, the Interior Department, realizing  it had failed to comply with its regulations, reissued the  notification, backdated to September 21, 1954 and described  as "a revision of and replac[ing] the original bearing the same  date."  The notification was identical to the original except  that it omitted any reference to the reason for the employee's  discharge or to the authority under which the discharge was  effected.  The Supreme Court held that the post hoc compliance did not validly "revise" the initial defective dismissal. Grant's case is distinguishable.  Holland's second voiding of  Grant's reenlistment contract was not "a revision" of her first  attempt but an entirely new action which addressed Grant's  statement of circumstance as intended by the regulations.7Thus, Holland properly voided Grant's reenlistment contract  on October 31 and, unlike the Interior Department in Vitarelli, did so timely.  The fact that the Air Force erred in two  earlier attempts does not nullify its final, and correct, voiding  of Grant's reenlistment contract in compliance with AFI 362612.  Accordingly, the district court is


8
Affirmed.



Notes:


1
 To be eligible for reenlistment an enlisted Air Force member  must be "within 6 months of current ETS."  Air Force Instruction  (AFI) 36-2612  2.1.


2
 All dates occurred in 1997 unless otherwise noted.


3
 Different Air Force regulations govern the nonselection of a  member for reenlistment and the voiding of a reenlistment  contract. To nonselect a member for reenlistment, the unit commander  "personally advises the member of the nonselection" and "advises  the member in writing of the right to appeal nonselection under  paragraph 3.8 of this instruction."  AFI 36-2612  3.5.3.2.  A  member who has been nonselected "must submit a written appeal to  [Military Personnel Flight] by the next scheduled [Unit Training  Assembly] after the date [he is] notified."  Id.  3.5.5.1.  By  contrast, a reenlistment contract is voided by a "numbered" (here,  the 22nd) Air Force official.  See id.  4.5.1, 4.5.1.1.


4
 The letter and package were returned by the United States Post  Office marked "refused."  The mail carrier who attempted delivery  testified that he specifically recalled delivering the certified mail to  Grant at her apartment and that Grant refused both.  Grant  admitted that she refused to accept the package, see Complaint  p 17, but denied that she refused to accept the certified letter.  See  Grant's November 18, 1997 Memorandum.


5
 Although Grant challenged her nonselection in her complaint  filed in district court, she has not challenged it on appeal.


6
 Although Grant appeared to challenge the contract voiding in  her reply brief, see Reply Br. 11-12, our case law makes clear that  an argument first made in a reply brief comes too late.  See  Fraternal Order of Police v. United States, 173 F.3d 898, 902-03  (D.C. Cir. 1999).


7
 Holland's October 31st memorandum voided Grant's contract  "[a]fter further review of the request to void the reenlistment  (including the member's Statement of [Circumstance]) of Sergeant  Grant."


