Albino v. United States, Civil Action No.: 13–0105 RC

78 F.Supp.3d 148

David Albino, Plaintiff

v.The United States, Defendant.

Civil Action No.: 13–0105 RC

United States District Court, District of Columbia.

Signed January 15, 2015

David Albino, Madison, WI, pro se.

Wayne Holden Williams, John J. Gowel, U.S. Attorney's Office, Washington, DC, for Defendant.

Re Document Nos.: 10, 13

MEMORANDUM OPINION

Denying Defendant's Motion for Summary Judgment and Granting Plaintiff's Cross–Motion for Summary Judgment T

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

While deployed in Iraq in 2004, pro se Plaintiff David Albino received a negative Officer Evaluation Report. Plaintiff believes that the evaluation is unjust, inaccurate, and the product of numerous administrative and procedural errors, and he has spent more than a decade attempting to have the evaluation removed from his military records. An Army inquiry into the contested evaluation found that it contained numerous errors and recommended that it be removed. Additionally, two Army administrative boards have collectively ordered six corrections to the evaluation. Nevertheless, the Army Board for Correction of Military Records (“ABCMR”) has repeatedly denied Plaintiff's request to remove the evaluation. Plaintiff now brings suit against the United States under the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. (“APA”), arguing that the ABCMR's June 20, 2009, decision denying his application to remove the contested evaluation was arbitrary, capricious, and unlawful. The parties have filed cross-motions for summary judgment. After a searching review of the administrative record and careful consideration of the parties' briefs, the Court grants Plaintiff's motion for summary judgment and denies Defendant's motion. The ABCMR's decision is arbitrary and capricious because it failed to respond to several of Plaintiff's non-frivolous arguments and misapplied the presumption of administrative regularity. The Court will therefore remand to the ABCMR for full consideration of Plaintiff's arguments and evidence without the presumption of regularity.

II. FACTUAL BACKGROUND

A. Plaintiff's Pre–Iraq Military Career

After serving as an enlisted sailor in the Navy and Navy Reserves, AR 403–07, 412, and graduating from law school at the University of Wisconsin–Madison, AR 445, 447, Plaintiff David Albino, on May 29, 1997, was appointed as a Reserve Commissioned Officer of the Army and assigned to the Judge Advocate General branch, effective June 3, 1997, AR 417.

For the evaluation period of June 3, 1998, to June 2, 1999, Plaintiff's Officer Evaluation Report (“OER”) reflected a rating of “Outstanding Performance, Must Promote,” and the Senior Rater rated him as “Best Qualified,” concluding that Plaintiff's potential, compared to other officers rated in the same grade, was “Center of Mass.” AR 322–23. For the period June 3, 1999, to June 2, 2000, Plaintiff's OER reflected a rating of “Satisfactory Performance, Promote,” and the Senior Rater rated him as “Fully Qualified,” concluding that Plaintiff's potential, compared to other officers rated in the same grade, was “Center of Mass.” AR 320–21. This reflected a lower rating than the previous year.

For the period June 3, 2000, to June 2, 2001, Plaintiff's OER again reflected a rating of “Satisfactory Performance, Promote.” AR 318–19. Plaintiff's Rater provided mixed comments that, although generally positive, were critical of Plaintiff's failure to meet physical fitness standards. AR 319. The OER did not contain comments from a senior rater because Plaintiff's Senior Rater had not served in that position for the requisite number of days. AR 319. For the evaluation period of June 3, 2001, to June 2, 2002, Plaintiff's OER reflected a rating of “Outstanding Performance, Must Promote,” and the Senior Rater rated him as “Best Qualified” concluding that Plaintiff's potential, compared to other officers rated in the same grade, was “Center of Mass.” AR 314–15. This rating reflected a return to higher ratings after a two-year decline, and was followed by another very positive review for the evaluation period from June 3, 2002, to April 16, 2003. AR 312–13 (reflecting ratings of “Outstanding Performance, Must Promote,” “Best Qualified,” and “Center of Mass”). But Plaintiff's rating for the period of May 3, 2003, to October 31, 2003, reverted to “Satisfactory Performance, Promote,” although the senior rater continued to rate him as “Best Qualified” and “Center of Mass.” AR 310–11. What happened to Plaintiff's military career subsequently is what is at the center of this litigation.

B. Plaintiff's Iraq Deployment

Between December 2003 and November 2004, Plaintiff was mobilized and deployed to Iraq. AR 92, 114. His OER for this time period lists him as an International Law Officer in a civil affairs battalion assigned to the 1st Infantry Division in Iraq. AR 136. Plaintiff, however, viewed himself as serving in a dual role, as Command Judge Advocate and as an International Law Officer. See AR 123. Regardless, while in Iraq, Plaintiff found himself under the command of Lieutenant Colonel Gregory P. Fischer (“LTC Fischer”), the Battalion Commander. The record clearly reflects that this was not a positive relationship.

See, e.g., AR 122, 132, 133, 136– 37, 222, 224.

Two projects that Plaintiff was tasked with while under LTC Fischer's command are central to the events at issue in this case. First, in the spring of 2004, Plaintiff was tasked with putting together a non-governmental organization (“NGO”) conference to persuade NGOs to work in certain areas under the purview of the 1st Infantry Division. AR 158, 229, 269. The record reflects that Plaintiff participated in planning meetings, AR 269, and that when LTC Fischer sent out invitations to the NGO conference, Plaintiff was listed as the contact person, AR 229. The conference took place on June 1, 2004, at the Ashur Hotel at Dokan Lake in Sulaymaniyah, Iraq. AR 230–31. The event was portrayed as a success in the 1st Infantry Division's newsletter. AR 232–33. However, the record does not clearly reflect to what extent the success of the Sulaymaniyah conference was a consequence of Plaintiff's specific contributions as opposed to the work of others.¹

Second, in June 2008, Plaintiff was involved in the 1st Infantry Division's efforts to partner with the Coalition Provisional Authority—North (“CPA–North”) in Ibril, Iraq in order to collect intelligence regarding the movements of internally displaced Iraqis. AR 127–28, 132, 137. The record appears to indicate, however, that the 1st Infantry Division and CPA–North were not on the same page regarding Plaintiff's mission. AR 125–29, 275–76. While the 1st Infantry Division wanted to survey internally displaced persons, AR 127–29, and LTC Fischer states that Plaintiff was so tasked, AR 137, the Regional Coordinator of CPA–North, Dr. Liane Saunders, wanted Plaintiff to act instead as a liaison, allowing the 1st Infantry Division to receive information from the CPA–North staff on displaced persons, AR 125–26, 159. CPA–North expressed concern that the 1st Infantry Division's interview efforts would duplicate work already being done by NGOs, and that it would inappropriately raise either expectations in the displaced populations that they would receive benefits or fears that they would be evicted. AR 129, 159. Perhaps tellingly, Plaintiff has indicated that he believed the 1st Infantry Division's resources could have been better used elsewhere. AR 159.

Plaintiff further claims that LTC Fischer's indecisiveness regarding the CPA–North partnership and trip to Ibril resulted in repeated changes in the plans for the trip and contradictory orders regarding whom Plaintiff should brief and when. AR 92, 141, 159. Specifically, Plaintiff claims that prior to his departure to Ibril, he was told first to brief the G3 Chief of Plans, the Chief of Staff (“Cos”), or both, before departure. AR 92. Plaintiff concedes that he did not brief either individual prior to leaving for Ibril on June 11, 2004. AR 93, 142. He maintains that he did not ignore orders, however, because on June 9, 2004, Major Gajewski told him that he could coordinate with G3 after his arrival in Irbil. AR 92, 141. Given the changing plans, conflicting orders, and difference of opinion between the 1st Infantry Division and the CPA–North, Plaintiff asked to be taken off the mission, but that request was not granted. AR 92, 137, 159.

On June 11, Plaintiff flew to Irbil. AR 141, 160. Although Plaintiff was instructed to bring a member of G2 with him to Ibril, he did not do so. AR 130, 160. Colonel Kamena became angry, believing that Plaintiff's team had purposely left behind a member of the G2, although Plaintiff claims that he had been told no G2 personnel were available to go and that Captain Cook—who did accompany Plaintiff—would cover the intelligence duties of a G2. AR 93, 130.

The Regional Coordinator of CPA–North was displeased with the 1st Infantry Division's intelligence-collecting agenda and the force protection profile required for the visit, which she felt increased the risk for her team. AR 125. She therefore suggested that the visit not take place until the differences could be worked out, but she suggested Plaintiff be left behind in Ibril to act as a liaison between the 1st Infantry Division and CPA–North. AR 126. Shortly thereafter, Plaintiff was told that he and his team should return. AR 126, 131, 260. On June 12, one day after his arrival, Plaintiff returned from Irbil to Tikrit. AR 260.

On June 14, 2004, LTC Fischer formally reprimanded Plaintiff in writing. AR 132. The reprimand chastised Plaintiff for: not providing weekly reports to G2 on refugees; departing to Irbil without first briefing either the Chief of Staff or Chief of Operations on the plan to survey Internally Displaced Civilians, despite Plaintiff's awareness of the potential negative consequences of failing to brief the Chief of Staff; and asking to be taken off the...