Brown v. McHugh

972 F.Supp.2d 58

Henry BROWN Jr., Plaintiff,

v.John McHUGH, Secretary of the Army, Defendant.

Civil Case No. 12–01071(RJL).

United States District Court, District of Columbia.

Sept. 23, 2013.

Jane Carol Norman, Bond & Norman, PLLC, Washington, DC, for Plaintiff.

John J. Gowel, United States Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff Henry Brown, Jr. (“plaintiff” or “Brown”), a retired United States Army officer, brought this suit against John McHugh, Secretary of the Army, in his official capacity as head of the Department of the Army. Plaintiff claims that the Army Board for Correction of Military Records improperly denied his administrative request to remove an adverse Officer Evaluation Report from his military service record. He now appeals that administrative decision to this Court. Before the Court are defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, and plaintiff's Cross–Motion for Summary Judgment. Because plaintiff has failed to state a claim upon which relief can be granted, defendant's motion is GRANTED and plaintiff's motion is DENIED.

BACKGROUND

Plaintiff Henry Brown, Jr. served as a commissioned officer in the U.S. Army Reserve for over 24 years and retired with the rank of Major in April 2007. Compl. [Dkt. # 1] ¶¶ 6, 8, 16, 21. In early 2006, plaintiff received an Officer Evaluation Report (“OER”) evaluating his performance for the period October 21, 2004 to October 20, 2005 (the “October 2005 OER”). Compl. ¶ 19; Administrative Record (“A.R.”) at 23–24. That OER is the centerpiece of this case.

An OER is a form used to evaluate the performance and potential of officers. See Army Regulation 623–105 (Dec. 17, 2004) (“Army Reg. 623–105”), at ¶ 1–7(a). As part of the Army's personnel system, it helps identify which officers are best qualified for promotion and assignment to positions of higher responsibility, as well as which officers should be kept on active duty, retained in grade, or eliminated. Id. ¶ 1–8(a). At least two of the officer's supervisors prepare the OER: the “rater,” who is the officer's direct supervisor, and the “senior rater,” who is higher in the chain of command. Id. at ¶¶ 2–10, 2–14. The rater and senior rater evaluate the officer on the OER by checking “yes” or “no” in boxes for certain attributes, skills, and actions; rating performance and potential for promotion on a continuum; and writing narrative comments. Id. at ¶¶ 3–19, 3–20, 3–22.

Plaintiff's October 2005 OER, completed by rater Colonel Mark Rutkowski and senior rater Colonel Robert Visbal, reflected negatively on him in several respects. The rater checked “no” in the box for “Communicating” in Part IV(b)(3) and checked the “Unsatisfactory Performance, Do Not Promote” box in Part V(a), while the senior rater checked the “Do Not Promote” box in Part VII(a). Compl. ¶ 19; A.R. at 23–24. And the raters explained their recommendations with written comments that plaintiff's performance was “marginal” and “unremarkable”; that he “often required more direction and guidance than should be required” by an officer of his rank; that he was lacking in leadership, communication, and organizational skills; that he required “greater experience to be an effective field grade officer”; and that he should not be considered for promotion until he improved in those areas. Id.

Plaintiff appealed the October 2005 OER first to the Army Special Review Boards (“ASRB”) in 2006 and requested removal of that report from his service record. Compl. ¶ 20; A.R. at 32–33. The ASRB denied his appeal in February 2008. Compl. ¶ 22; A.R. at 26–31. In the interim, plaintiff was not promoted to Lieutenant Colonel and was involuntarily retired from the Army with an honorable discharge in April 2007. Compl. ¶¶ 18, 21.

Following his discharge, plaintiff then pursued the final administrative remedy available to him—an appeal to the Army Board for Correction of Military Records (“ABCMR”) to remove the October 2005 OER from his service record. Compl. ¶ 1, 24; A.R. at 11–22. The ABCMR, a civilian board operating under the authority of the Secretary of the Army, “may correct any military record of the [Army] when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a); see also Army Reg. 623–105 at ¶ ¶ 6–8(f), 6–10(a).

In his application to the ABCMR, plaintiff contested the adverse rating he received for his communication skills. See A.R. at 11–22. He submitted evidence to contradict his evaluation, including a letter commending his performance from Lieutenant Colonel Gundula Birong, who served with plaintiff during the period covered by the contested October 2005 OER, as well as OERs rating him positively that covered time periods before and after the October 2005 OER. Compl. ¶ 24; A.R. at 14–17. Plaintiff also asserted that his rater failed to perform required counseling and feedback, A.R. at 14, 17–20, and he claims that he argued that his rater was biased. Compl. ¶ 25.

In February 2010, the ABCMR denied plaintiff's appeal, concluding that he had failed to meet his burden of proof to justify removing or redacting the October 2005 OER under Army Reg. 623–105. Compl. ¶ 26; A.R. at 9. The ABCMR found that “[t]here is no evidence and the applicant has provided none to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner”; that plaintiff “did not provide compelling evidence to overcome the presumption of regularity” regarding his evaluation by the raters; and that plaintiff “fail[ed] to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.” A.R. at 9. In June 2012, plaintiff filed his complaint with this Court seeking reversal of the ABCMR's decision.

ANALYSIS

Plaintiff Brown's complaint asserts that the ABCMR's decision was arbitrary and capricious and unsupported by substantial evidence, in violation of the Administrative Procedure Act (“APA”), because the evidence before that Board showed that his rater was biased. Compl. ¶ 33. Next, plaintiff asserts that the ABCMR's action violated his constitutional right to due process of law because the Army violated its own regulations by not giving plaintiff required counseling. Compl. ¶¶ 35–36. As relief, plaintiff seeks the removal of the October 2005 OER from his service record, and retroactive promotion to Lieutenant Colonel with attendant back pay and allowances. Compl. at 9.

Defendant has moved to dismiss plaintiff's complaint, and in the alternative has moved for summary judgment. First, pursuant to Fed.R.Civ.P. 12(b)(1), defendant argues that plaintiff's request for promotion must be dismissed as nonjusticiable, and his request for back pay must be dismissed for lack of subject matter jurisdiction. See Def.'s Mot. to Dismiss or Summ. J. [Dkt. # 11] (“Def.'s Mot.”) at 9–10. Plaintiff concedes that these two prayers for relief are “non-justiciable.” Pl.'s Cross–Mot. Summ. J. [Dkt. # 14] (“Pl.'s Mot.”) at 11; Pl.'s Reply at 2. Therefore, I will treat those claims as conceded and dismiss them. See also Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989) (a “request for retroactive promotion falls squarely within the realm of nonjusticiable military personnel decisions”); Morrow v. United States, 723 F.Supp.2d 71, 79 (D.D.C.2010) (finding lack of subject matter jurisdiction to consider monetary damages claims against the United States brought under the APA because that statute does not waive sovereign immunity with respect to such claims).

Next, defendant argues that plaintiff's claim of rater bias under the APA must be dismissed under Fed.R.Civ.P. 12(b)(6) because he waived this claim by failing to raise it before the ABCMR. Def.'s Mot. at 14–16. Finally, defendant argues that plaintiff's due process claim must also be dismissed under Rule 12(b)(6) because plaintiff has not asserted a cognizable property or liberty interest. Id. at 11–14. For the following reasons, I find that plaintiff's complaint must be dismissed, and therefore I do not reach the issue of summary judgment.

I. Standard of Review

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether the plaintiff has pleaded facts sufficient to “raise a right to relief above the speculative level,” assuming that the facts alleged are true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “While a complaint should not be dismissed unless the court determines that the allegations do not support relief on any legal theory, the complaint nonetheless must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted.” District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1078 (D.C.Cir.1984). “[A] plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (2007) (alteration in original) (citation and internal quotation marks omitted). Indeed, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).

In considering a motion under Rule 12(b)(6), a court must construe the complaint in a light favorable to the plaintiff and must accept as true plaintiff's reasonable factual inferences. See Howard v. Fenty, 580 F.Supp.2d 86, 89–90 (D.D.C.2008); Smith v. United States, 475 F.Supp.2d 1, 7 (D.D.C.2006) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir....