UNI'I`ED STATES DISTRICT COURT
FOR THE DISTRICT OF COLI}MBIA

 

 

MARTHA A. WANCA, §
Plaintiff, §
v. § Civil Case No. 17-2343
ERIC D. HARGAN, §
I)efendant. g
)
MEMORANDUM OPINION

 

This case concerns officer promotion in the U.S. Public Health Service (PHS), a division
of the Departrnent of Health & Huinan Selvices (HHS) and one of the country’s seven uniformed

services

Connnander Martha Wanca asked PHS to waive a prerequisite for proinotion. When PHS
refused, Wanca filed suit under the Mandamus Act and the Administrative Procedure Act (APA),
asking this Court to force HHS to Waive the prerequisite and to resolve Wanca’s related Equal
Opportunity (EO) complaint

But two flaws doom her claini. First, mandamus cannot mandate discretionary
government action. Second, APA relief is either unavailable (because PHS did not act arbitrarily -
or capriciously) or rnoot (because PHS already acted on Wanca’s EO oornplaint). 'l`he Court Will
grant the government’s summary judgment motion and deny Wanca’s cross-motion.

I. Background
A. The PHS Commissioned Corps
PHS seeks to protect, promote, and advance our nation’s health and safety by responding

to disasters, supporting care to underserved populations, and overseeing cutting-edge research

Led by the Surgeon General of the United States, PHS organizes its 6500 officers into eleven
“professional categories”: physicians, dentists, nurses, therapists, pharrnacists, health service
providers, environmental health professionals, dietitians, engineers, veterinarians, and scientists
Connnissioned Corps lnstruction (CCI) 122.01 § 6-1 (2011), littps://dcp.psc.gov/ccinis/ccis/
documents/CC122.01.pdf.

Within these categories, promotion follows a rank grade like the Navy, though it uses a
different naming convention Officers move sequentially from “junior assistant” (akin to ensign)
to “assistant" (iunior lieutenant) to “senior assistant” (lieutenant) to “full"' (lieutenant
commander) to °‘senior” (coinmander) to “director” (captain). CCl 23 l .01 at app. (2018), https://
dcp.psc.gov/ccmis/ccis/documents/CCI2_3_1_01.pd;t`. The HHS Secretary sets the number of
officers for each grade based on PHS’s anticipated needs, available funds, and the officers
already in each grade, as Well as the anticipated appointments, promotions, and retirements. 42
U.S.C. §207(d).

42 U.S.C. § 211 governs the promotion process. Though it tasks the President With filling
in additional details via regulation, see § 211(a), (k), the President delegated this authority to
HHS. See Exec. Oi‘der No. 11,140 § 1(f), 29 Fed. Reg. 1637 (Jan. 30, 1964). HHS publishes its
regulations in the Comniissioned Corps Issuance System, available oniine at littps://dcp.psc.gov/
ccniis/ccis/CCISToc.aspx?Show'l`OCwY.

1. The Promotion Process

Section 21 1(a) identities three kinds of potential promotions: “perrnanent promotions

based on length of service, other permanent promotions to fill vacancies, or temporary

promotions.” Each has a slightly different set of requirements and procedures

i. Permanent Promotions Based on Length of Service

Length-of-service-based permanent promotions occur automatically once an officer
serves a set time in a grade and once the Annual Permanent Promotion Board (APPB) deems
them qualified CCI 331.01 § 6-4 (2008), littps://dcp.psc.gov/ccmis/ccis/documents/
CC1_331.01.pdf. Section 21 1(d)(2) contemplates length~of~service-based permanent promotions
to senior assistant grade after three years as an assistant officer; to full grade after seven years as
a senior assistant officer; and to senior grade after seven years as a hill officer.

But in practice, noncompetitive promotions stop at the senior assistant grade. As § 211(b)
allows, the Surgeon General limits full and senior grade promotion to filling vacancies CCl
331.01 § 6-6(a).

ii. Permanent Prornotions to Fill Vacancies

An officer must clear three hurdles to obtain a permanent vacancy-filling promotion
First, like length-of-service-based promotions, the APPB must deem the candidate qualified Id.
§ 6-4. Candidates become eligible for APPB examination after spending a certain time in their
current grade. Id. § 6-2(a)(1). Second, the APPB examines all eligible candidates, determines
Which it will recommend for promotion, and ranks the recommended candidates according to
their capabilities and performances Ia’. § 6~5. Third, the APPB forwards this ranking to the
Surgeon General, Who_based on a predetermined cut-off_sends a final list to the Assistant
Secretary for Health. Id. § 6-6.

A senior grade officer becomes eligible for APPB examination four years after her
permanent promotion to senior grade. [d. ~§ 6-2(a)(l)(a). But before an officer can be
permanently prornoted, PHS policies require her to serve one year in that grade on a temporary

basis. Id. § 6-2(0). Put another Way, PHS imposes a one-year temporary trial period before an

officer’s permanent promotion to a new grade. So it actually takes five years as a senior grade
officer to be eligible for promotion examination one year on a temporary basis, plus four years
on a permanent basis

The APPB examines eligible candidates annually l'a’_ § 6»4(a). lt uses a standard rubric to
assess the candidate"s performance reviews, professional qualifications, advancement potential,
prior service, and response readiness Id. §§ 6-4-6-5. From this examination the APPB lists
candidates recommended for promotion ranking the recommended candidates according to their
average score ]d. § 6-5(c).

Tlie APPB’s ranking goes to the Surgeon General, who verifies the recommended
candidates meet basic compliance requirements, see ial § 8-2, and applies a predetermined cut-
off score based on the total vacancies See § 211(0); CCI 331.01 § 6-6. But before doing so, the
Surgeon General can alter the ranking at his discretion See CCl 331.01 § 6.5(f),
(“Notwithstanding the recommendation of the promotion board, the SG . . . may rescind a
board’s promotion recommendation of ‘not recommend’ when upon evaluation it is determined
that the officer’s record does not support such a recomrnendation.”)', id § 8-2(a) (“The SG will
ensure that the final approval list for permanent promotions is complete after eliminating any
officer . . . [w]ho, based on additional information available to the SG is found either not
qualified or not suitable for promotion . . . .”). The Surgeon General sends his final
reconnnendations to the Assistant Secretary. ]d. § 6-5(e).

iii. Temporary Vacancies
Obtaining a temporary promotion is even more complicated: an officer must either clear

multiple requirements for Annual Temporary Promotion Board (ATPB) examination or be

nominated for an Exceptionai Proficiency Promotion (EPP). See CCI 332.01 (2008), https://
dcp.psc. gov/ccmis/ccis/documents/CCI_332.01 .pdf_

To be eiigible for ATPB examination, a senior grade officer must have twenty-four years
of 'l`raining and Experience Date (TED) credit, nine years of active duty service as a
commissioned officer (including three years in PHS), and three years of experience as a senior
grade officer. Id. at app. TED credit reflects the officer’s relevant education and experience, as
weil as her subsequent uniformed service CCI 231.01 § 6-2(a)(l) (2018). For instance, a
commissioned officer with a Masters of Science in Nursing (MSN) receives six years of TED
credit for the time spent obtaining her education in addition to credit for subsequent training or
uniformed service as a nurse. See id. §§ 6-2(c)(3), (e)(l).

But mechanically applying these requirements occasionally excludes candidates whose
unusual experiences or special qualifications make them well-suited for promotion So for these
candidates, PHS lets their division head nominate them for an EPP. CCI 332.01 §§ 6-8(a), (c).
Division heads can award EPPS for up to five percent of their division, but a candidate can be
nominated only once per grade. Id. § 6-8(€)(1). Once nominated, the ATPB examines the EPP
candidate alongside officers otherwise eligibie for examination Ia'. § G-S(d). Put differently, the
EPP recipient does not receive any special treatment during ATPB examination; an EPP merely
provides a one-time backdoor to temporary promotion examination

ATPB examination resembles APPB examination-especially for temporary promotions
above the senior grade, which like their permanent analog still “depend on the requirements of
the Corps.” Id. § 6-5(a). And, just as for vacancy-filling permanent promotions, the Surgeon

General may alter the ATPB’s recommendations before approval by the Assistant Secretary. ld.

§§ 3"1(111); 8~2(3)(5)-

2. The Grievance Process

PHS provides an internal grievance process for officers “who believe they have been
wronged by an official action.” CCI 211.04 § l (2015), https://dcp.psc.gov/ccmis/ccis/
docurnents/CC21 1%2004.pdf. The official action must be a “[d]iscretionary act[] or omission[]
of a supervisor or senior official that has a direct and adverse effect,” an act “[b]eyond"’ a
supervisor or senior officiai’s “legitimate autliority,” "‘[a]rbitrary, capricious, or an abuse of
discretion,” or “[c]leariy unfair (e.g., selective application of standards).” Id. § 6-3. 'i`o lodge a
grievance, the officer must submit a written complaint to her immediate supervisor within thirty
days after the challenged action Id. § 8-4(a). That supervisor reviews the complaint, see fci § 6-
1(d), and must provide the officer with a written decision within thirty days. Id. § 8-4(b). 'l`he
officer has ten days to appeal to the next highest official, ial 8-4(c)-(d), and may continue
appealing all the way to the Surgeon General. ]d. § 8-8.

3. The Equal Opportunity Complaint Process

As true for all uniformed service members, federal antidiscrimination laws do not protect
PHS commissioned officers See CCI. 211.03 § B(.'i) (2001), https://dcp.psc.gov/ccmis/ccis/
documents/CCPM26“1_6.pdf. But if a PHS officer thinks an official action amounts to race,
color, religion sex, national origin age, or disability discrimination PHS allows them to submit
a complaint to an internal EO reviewer. Ia'. § E(l).

'l`he complaint must be in writing and submitted within sixty days after the alleged
discrimination Id. § F(2). But if the complaining officer identifies additional information after
filing her complaint, it “shall be included” in the complaint, though she “bears the burden of

proof that this information is relevant and could not have been included in the original.” Id. §

1(2).

Next, the EO officer investigates the complaint and develops the “ROi,"’ a “detailed,
complete, and accurate written record"’ of the investigation Id. § F(2)(c)(8). The EO officer must
give the complaining officer a copy of the ROI within ninety days of the complaint. Id. §
F(2)(c)(9). lf he misses this deadline, the complaining officer can obtain an expedited review by
a representative from the Surgeon General’s Policy Advisory Council (SGPAC), senior level
officers who advise the Surgeon General on commissioned corps policy matters Id; i`a’. § D(l4).

The complaining officer has thirty days to review, comment on, and supplement the ROI.
Id. § F(Z)(c)(lO). And within thirty days after receiving those comments, the EO officer must
submit a recommended decision to the Surgeon General for review. Ia’. § F(2)(c)(10)(c). lf the
EO officer fails to forward his reconnnended decision within thirty days, the complaining officer
may send the Surgeon General the original complaint and ROI. Id. ln either event, the Surgeon
Generai has thirty days to issue a final written decision or to remand the complaint for further
investigation Id. § F(2)(f).

B. Martha Wanca’s Career

Wanca is a decorated officer with nearly twenty-five years as a nurse in the uniformed
service. R. 6-7. She has been a nurse for even longer, since l969. R. 7. ln 1991, she completed
her Bachelors of Science in l-lealth Care AdministrationJ qualifying her to serve as a nurse in the
Air Force Reserves. R. 6-7. Over the next decade, the Air Force promoted her to major. R. 6. Yet
because she joined the Air Force Reserves past the age limit for commissioning, her future was
iimited_she could not retire with benefits and would have been mandatorin separated in 2003.
R. 45.

ln 2002, she completed her MSN, which_along with her prior service in the Air Force

Reserves-allowed her to join PHS as a commissioned officer. R. 9, 32; CCI 231.01 § 6-1(b)(2);

CCl 231.03 § 6-3(b) (2011), https://dcp.psc.gov/ccmis/ccis/documents/CCI2_3_1_03.pdf. So she
transferred to PHS in 2004. R. 37. At the time she transferred, PHS gave her seven years of TED
credit--»»six for her time earning her MSN, and one for her subsequent year of servicemenough to
make her an assistant grade officer. R. 50. But because she was a major in the Air Porce
Reserves, and because interservice transferees maintain the grade held in their prior service, see
CC23.3.5 § 8-2(b)(2) (2()08), https://dcp.psc.gov/ccmis/ccis/documents/CCPM23_3_5.pdf, she
transferred into PHS as a full grade officer. R. 420.

Witlrin PHS, Wanca served the indian l-lealth Service (IHS) for nearly five years before
shifting to the Offrce of Commission Corps Operations (later' called the Division of
Commissioned Corps Personnel and Readiness, or DCCPR). R. 94-95. By this point, she had
been a full grade officer long enough to be considered for permanent promotion to senior grade.
But because she obtained her MSN so late in her career, she fell short of the TED credit
necessary to be considered for temporary promotion to senior grade-which, given the one-year
temporary-promotion prerequisite, effectively blocked her pennanent promotion too. So unable
to follow the traditional promotion track, she sought an EPP for the next three promotion cycles.
R. 60; 76-77; 86-8?. But she never broke into the five percent her division nominated. R. 285-94.

Wanca next asked the head of DCCPR, and then the Surgeon Generai, Vice Admiral
Regina Benj amin, to waive the one-year terriporary-promotion prerequisite so Wanca could be
considered for immediate permanent promotion to senior grade. R. 100-02. Though the waiver
was unprecedented, the Surgeon General supported Wanca’s request “due to the very unique
nature of her background, uniformed service in the [Air Force] and PHS as a Nurse Officer,
timing of the receipt of her qualifying degree, and inter-service transfer.” R. 108-09. The

Assistant Secretary agreed, making Wanca eligible for APPB review. R. 109. And when the

APPB recommended her for permanent promotion to senior grade, R. 99, the Surgeon General
and Assistant Secretary concurred R. lll. Wanca remains the only officer in PHS history to
receive this waiver

Four years after this permanent promotion Wanca was eligible to be examined for
permanent promotion to director grade. So with DCCPR support, she petitioned the then-Acting
Surgeon General Boris Lushniak to again excuse the one-year temporary-promotion prerequisite
R. 134-35. lie approved, so the APPB examined her. R. 135. But since her score missed the
Surgeon General’s predetermined threshold, she remained a senior grade officer.

A few months later, PHS transferred Wanca back to IHS. With this new year and new
position carrie a new promotion cycle, and a new waiver request This time, IHS opposed the
request for two reasons, explaining why in a detailed email. R. 712. First, it cited a recent policy
change giving other PHS officers similar disparities between their actual experience and their
official promotion credit. R. 712. Tlrerefore lHS doubted Wanca’s circumstance remained
“significantly unique to warrant an individual waiver.” R. 712. Second, analogizing to EPPs
(which are available only once per grade), IHS resisted supporting another waiver for Wanca,
who obtained the waiver just a year earlier but failed to be promoted R.- 712.

Undaunted, Wanca submitted her unapproved request directly to the Surgeon General. R.
193-95. Surprised the request came outside the standard chain of command, the Surgeon General
asked IHS if it supported the waiver. R. 262-63. As Wanca knew, IHS did not. R. 260-61.
Though it praised Wanca as a “valued member” in an email to the Surgeorr General, IHS worried
waivers could provide “unfair opportunities and advantages” since permanent promotions are
typically easier to obtain than temporary promotions R. 260-61. l\/foreover, lI-lS was reluctant to

“open up this [waiver] process as a viable way to circumvent temporary promotion eligibility

requirements for any officer who meets permanent promotion eligibility requirements for the
equivalent grade.” R. 26l. A few months later, the new Surgeon General Vice Admiral Vivek
l\/Iurthy denied Wanca’s request without explanation R. 267.

Thirty days after Murthy denied her waiver, Wanca filed a grievance, alleging PHS acted
unfairly, arbitrarily, and capriciously R. 268-69. She submitted her grievance directly to the
Surgeon General, cc’ing her immediate supervisor. R. 268. But the Surgeon General’s office
rejected the filing, since PHS policy required her to submit the grievance directly to her
immediate supervisor, reaching the Surgeon General only after successive appeals R. 270-73.
Tllus her direct submission to the Surgeon General Was therefore invalid So her supervisor
dismissed her grievance as improperly filed, and subsequent reviewers affirmed R. 270-73.

Next Wanca filed an EO complaint alleging denial of her waiver and of her grievance
amounted to age discrimination R. 663 -68. She filed her complaint on May 5, 2017, making the
ROl due August 3, 20l7. But that date came and went without a response. (Even still, she never
referred her complaint to an SGPAC representative, the remedy PHS regulations provide for
overdue ROls.)

So Wanca filed this suit. She petitioned the Court for mandamus directing PHS to grant
her request for a waiver and to act on her EO complaint; she also brought an APA claim seeking
similar relief. Compl. lift 42-53.

'l`wo months later, the EO officer sent the ROI (by then, over five months late). R. 652-
59. Wanca promptly submitted her comments via email; the EO officer acknowledged receipt E-
mail from Horace Robinson_to lvlaltha Wanca (Feb. 14, 2018, 5:39 AM), ECF No. 21-1.

Over a month passed without the EO officer’s recommended decision Cf. U.S. Dep’t of Hcalth

& Human Serv., Equal Employment Opportunity Complaint Recommended Decision 13

10

[hereinafter Reconnnended Decision], ECF No. 21~2. Despite the delay, Wanca did not forward
her complaint to the Surgeon General, the remedy PHS regulations provide for overdue EO
officer decisions lnstead, her counsel followed up With PHS’s EO office. See Letter from David
P. Sheldon to Horace R. Robinson (Oct. 5, 2017), ECF No. 8-2 at 48~49. And when he did, he
was met with what he perceived as reprisal threats: “l just hope She doesn’t lose her {senior
grade] retirement as a result of this;” “Officers have no EO ri ghts;” and “You may not be aware
of it, but officers don’t have EO rights_check Westlaw and title 42.” Id.

Wanca tried adding these reprisal threats to her EO complaint IQ’. But PHS refused,
ruiing Wanca had not met her burden to prove the statements related to her initial claim. See
Letter from Cynthia Richardson-Crooks, Dir., EO Compliance & Operations Div., to David R.
Sheidon (Dec. ll, 2017), ECF No. 8-2 at 44-46.

The EO officer issued her recommended decision on the original complaint on May 23,
2018_over a month late. See Recommended Decision 13. And when she did, she claimed
Wanca failed to comment on the ROI, effectively admitting she didn’t consider the comments for
which her colleague had previously acknowledged receipt. See Recommended Decision 2.

II. Discussion

Both parties now move for summary judgment 'i`he government claims it’s entitled to
judgment as a matter of law since PHS had no duty to grant Wanca’s waiver request, and since
PHS properly processed her EO complaint l

Wanca’s case turns on her argument that PHS’s one-year temporary-promotion
prerequisite conflicts with § 21 l(d). Because of the conflict, she seeks mandamus directing HHS
to approve the waiver. Her accompanying APA claim is less clear but appears four-fold: that

HHS promulgated a regulation contrary to federal law; that PHS arbitrarily and capriciously

11

denied her third request for a waiver after approving two earlier requests; that PHS violated its
own regulations when it refused to adjudicate her grievance; and that PHS violated its own EO-
complaint-processing deadlines

But Wanca’s claim unravels because PHS"s one-year temporary-promotion prerequisite
does not conflict with § 21 1(d). Given the policy’s validity, its waiver turns on PHS`discretion.
And since this Court cannot direct PHS discretion, her mandamus claim fails. And since PHS
denied Wanca’s waiver request after a reasoned and deliberate process, faithfully applied its
grievance submission policy, and eventually acted on her EO complaint, her APA claims fail too.

The government is entitled to summary judgment Since the one-year temporary-
promotion prerequisite coexists with § 21 l (d), the government acted within its discretion to deny
Wanca’s waiver request And though PHS did not properly handle Wanca’s EO complaint,
because it has already issued its decision, there is nothing left for this Court to order.

A. Wanca cannot obtain mandamus relief because waiving the one-year temporary-
promotion prerequisite depends on PHS discretion

As Wanca acknowledges, mandamus may issue only if a party demonstrates “a clear right
to have an action performed by a government official who refuses to act.” Pl.’s Mem. L. 10, ECF
No. 12. Put differently, “courts do not have authority under the mandamus statute to order any
government official to perform a discretionary duty.” Swan v. Clinton, 100 F.Bd 973, 977 (D.C.
Cir. 1996).

“[A] duty is discretionary if it involves judgment, planning, or policy decisionsl lt is not
discretionary [i.e., ministeriai] if it involves enforcement or administration of a mandatory duty
at the operational fevel.” Beafty v. Wash. Metro. Areci Trai'.r.s'itAuih., 860 F.2d lll7, 1127 (D.C.
Cir. 1983) (second alteration in original) (internal quotation marks omitted) (quoting Jackson v.

Kelly, 557 F.2d 735, 737-38 (lOth Cir. 1977)).

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Waiving an internal policy is paradiginatically discretionary lt involves reconciling
competing policy considerations and exercising reasoned judgment Two different Surgeons
General (and one division head) thought this balance favored Wanca’s first two waiver requests;
a third Surgeon General (and a different division head) thought it defeated her final request The
divergence in outcome does not matter--one official’s prior lenience does not alone guarantee a
future official"s flexibility What matters is that a deliberative process undergirds both decisions
Since it does, the Court will not second-guess PHS’s considered judgment Just as the Court
cannot direct PHS to do something it does not have to, it cannot order PHS to waive its
temporary-promotion prerequisite

Wanca tries arguing the prerequisite contradicts § 211, and so the government camiot
hide behind a “discretionary” decision to not enforce an invalid policy But this argument fails
for three reasons_

First, Wanca misunderstands the statute to require all promotions to be based on length of
service. But § 211 enumerates three promotion categories, only one depending on service length
See § 21 i(a) (“Promotions of officers of the Regular Corps to any grade up to and including the
director grade shall be either permanent promotions based on length of service, other permanent
promotions to fill vacancies, or temporary promotions.”). Wanca’s contrary reading latches onto
the word “shall” while ignoring the neighboring “either/or.”

Second, the statute actually forecloses the promotion Wanca pursues. Wanca seeks a
length-of-service~based promotion from senior grade to director grade, but the statute only
contemplates length-of-service-based promotions for officers at the full grade or lower. See §
21l(d). Section 211 discusses director-grade promotions only in the context of vacancy-filling

promotions See § 21 l(e); sec also Rtlssell'o v. Um`tea’ Smtes, 464 U.S. 16, 23 (1983) (“Where

13

Congress includes particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (internal quotation marks omitted) (quoting Um'ted Slofes v.
Wong Kim Bo, 472 F.2d 720, 222 (5th Cir. 1972))).

Third, Wanca tries to force a collision between the one-year temporary-promotion
prerequisite and § 21 l (e)’s requirement that officers spend one year as a full grade officer_
either via permanent or temporary promotion--before promotion to the director grade. But this
basic condition sets a floor, not a ceiling; the Executive can demand additional qualifications
See § 211(a); Exec. Order No. 11,140 § l(f), 29 Fed. Reg. 1637 (Jan. 30, 1964). And that’s what
PHS’s one-year temporary-promotion prerequisite does here. Rather than conflicting with §
211(e), the prerequisite adds to it.

Tlie one-year temporary-promotion prerequisite does not conflict with § 2l1, so its
waiver turns on PHS discretion Wanca’s mandamus claim fails

B. Wanca cannot obtain APA relief under either §§ 706(1) or 706(2)

Wanca advances two different APA claims. First, she asks the Court to use 5 U.S.C. §
?06(1) to order PHS to grant her request for a waiver and to act on her EO complaint Second,
she asks the Court to use § 706(2) to set-aside PHS’s denial of her waiver request, PHS’s
rejection of her grievance, and the one-year temporary-promotion prerequisite Both requests
fail.

1. Wanca’s § 706(1) claims are nonjusticiable

Wanca invokes § 706(1) to request an order directing PHS to grant her waiver and to act

on her EO complaint Section 706(1) allows courts to compel “agency action unlawfully

withheld or unreasonably delayed.” If that standard sounds like mandamus relief, that’s because

14

it is See Anglers Cons_crvalion Nclwork v. Prftzker, 809 F.3d 664, 670 (D.C. Cir. 2016) (noting §
706(l) “carrie[s] forward"’ the common law writ of mandamus (internal quotation marks omitted)
(quoting Norfon v. S. U.'.ah Wilderness All., 542 U.S. 55, 63 (2004))). And like mandamus, “§
706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary
act."" Norton, 542 U.S. at 64 (quoting Attorney General’s l\/lanual on the Administrative
Procedure Act 108 (l947)).

But as explained in Section ll.A, PHS’s decision to waive the temporary-promotion
prerequisite is discretionary So the Court cannot order the waiver under § 706(1) any more than
it could under the l\/landamus Act.

Additionally,.Pl-IS has already acted on Wanca’s EO complaint So though PHS did not
comply with its own claim-processing deadlines, there is nothing for the Court to do now. Since
PHS has released its decision (albeit after the deadline), Wanca has already “obtained all the
relief that [she] sought.” Monztllo v. Biller, 735 F.2d 1456, 1459 (D.C. Cir. 2013). Thus her
claim demanding PHS act on her EO petition is moot See also Conservation Force, litc. v.
Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013).

2. Wanca cannot obtain § 706(2) relief because she fails to show PHS acted
arbitrarily, capriciously, or contrary to law

Wanca’s claim for § 706(2) relief fares no better. She asks this Court to set aside PHS’s
denial of her waiver request, PHS’s rejection of her grievance, and the one-year temporary-
promotion prerequisite as arbitrary and capricious Each will be discussed in turn.

First, denial of Wanca’s third waiver request Section 706(2)(a) lets courts set aside
executive actions-even discretionary ones_that are arbitrary or capricious A discretionary
action can be arbitrary and capricious if the government never explains why it exercised its

discretion in a given manner, especially if it previously decided the issue another way. See Mot'or

15

Ve]ticle Mfs ASS 'n of U.S., Inc. v. Smfe Fcn'm Mut. Attto. fits Co., 463 U.S. 29, 57 (1983); Im"l
Lodr`cs' Garmcnl' Workers’ Union v. Donovov'z, 722 F.2Cl 795, 815 11.35 (D,C. Cir. l983). But
even though PHS’s denial of Wanca’s third waiver request diverged from its previous decisions
PHS adequately explained the departure As Section lI.A notes, Wanca’s division head
thoughtfully considered the request and justified in (two) writings its decision to not support the
third request And given her thorough and well-reasoned opposition, it was unsurprising-~and
certainly not arbitrary and capricious_for the Surgeon General to summarily deny the waiver.

Second, dismissal of Wanca’s grievance To be sure, PHS’s noncompliance with its own
policy would be arbitrary and capricious See Noi ’[ Bioa'r'esel Bd, v. Eavt[. Frot. Agency, 843
F.3d 1010, 1018 (D.C. Cir. 2016). But to strike down government action for noncompliance with
its own regulations the government action must be either “plainly erroneous or inconsistent”
with the regulation’S text Greot Lakes Coimtet, Inc. v. Fed. Comnic ’ns Coin‘m ’n, 823 F.3d 9987
1002 (D.C. Cir. 2016).

Yet here, PHS’s dismissal of Wanca’s grievance fits perfectly with PHS policy. CCl
211.04 § 8-4(a) requires officers submit grievances directly to their immediate supervisors
providing for review by higher officials like the Surgeon General only after appeal. But Wanca
submitted her grievance directly to the Surgeon General, attempting to satisfy CCI 211.04 by
cc’ing her immediate supervisor, but in reality skirting his judgment and leaping over any
intermediate review. And CCI 2l 1.04 § 8-4(b)(2) put Wanca on notice that PHS could “[r]eject
[herj complaint due to an untimely application or other procedural defects.” So PHS did not act
arbitrarily or capriciously in blocking Wanca’s attempted circumnavigation of the grievance

process

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Finally, the one-year temporary-promotion prerequisite writ large. Plaintiffs challenging
an entire policy as arbitrary and capricious face an uphill climb: they bear the burden of showing
the policy lacked reasoned justification See ch Hol!en. Jr. v. Fed. Election Comm 'n, 811 F.3d
486, 496 (D.C. Cir. 2016). But Wanca does not even try carrying this burden at the summary
judgment stage, instead rehashing her mistaken argument that the one-year temporary-promotion
prerequisite conflicts with § 211. Because Wanca does not provide competent evidence at the
summary judgment stage indicating the one-year promotion prerequisite lacked reasoned
justification her challenge under § 706(2) fails

In s'um, neither the policy nor PHS’s treatment of Wanca were arbitrary or capricious
III. Conclusion

The Court will grant the government’s motion for summary judgment and deny Wanca’S

cross-motion A separate order follows

Date: February l, 2019 ¢".
Royce C. Lamberth

United States District Judge

17

