Garcia v. Kendall

1

JUDITH GARCIA, Plaintiff, v. FRANK KENDALL, III Defendant.

CIVIL No. TJS-23-3188

United States District Court, D. Maryland

December 12, 2024

MEMORANDUM OPINION

Timothy J. Sullivan, United States Magistrate Judge

The plaintiff worked for a government agency for over 15 years. When she was about five years from retirement, the agency terminated her. After the agency rejected the plaintiff's challenges to the decision, she filed this lawsuit. Although the arbitrary and capricious standard of review is highly deferential, an agency must still demonstrate that it considered the evidence before it. Because the agency's explanation ran counter to the evidence before it and its decision is in contravention to the legal authority upon which it relied, the decision cannot stand. The case will be remanded to the agency for further consideration.

Pending before the Court are the Motion for Summary Judgment (ECF No 21) filed by Plaintiff Judith Garcia and the Cross-Motion for Summary Judgment (ECF No. 25) filed by Defendant Frank Kendall, III, Secretary of the United States Air Force (the “Secretary”).^[1] Having considered the submissions of the parties (ECF Nos. 21, 25, 26, and 28), I find that a hearing is unnecessary. See Loc. R. 105.6. For the following reasons, Plaintiff's Motion will be GRANTED and Defendant's Cross-Motion will be DENIED.

I. Introduction

Ms. Garcia brought this action under the Administrative Procedure Act, 5 U.S.C. § 702 et seq., to challenge the decision of the Air Force Board of Correction of Military Records (“Board”). ECF No. 1. She alleges that the action by the Secretary to discharge her from active duty when she was less than five years from retirement eligibility violated Department of Defense Instruction 1320.08 (“DoDI 1320.08”) and that the Board's decision not to correct her record was therefore arbitrary, capricious, and contrary to law. Ms. Garcia contends that the Court of Appeals for the Federal Circuit's ruling in Baude v. United States, 955 F.3d 1290 (Fed. Cir. 2020), interpreting DoDI 1320.08 is applicable to her case, and that the Board's decision is inconsistent with that ruling.

The Secretary argues that his non-continuation of Ms. Garcia was permissible under the “authority and discretion in continuation of officers” with which he is afforded “in order to meet the needs of the Air Force.” ECF No. 25-1 at 3-5 (citing 10 U.S.C. §§ 611(a) & 637(a)(1) and DoDI 1320.08). He also contends that the Federal Circuit's ruling in Baude is not binding on this Court and that this Court “need not . . . adhere to the principles and holding articulated in that decision.” ECF No. 25-1 at 16. For these reasons, the Secretary argues that the Board's decision must stand.

II. Discussion

A. Legal Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict for the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Yet the “mere existence of a scintilla of evidence in support of the [opposing party's] position” cannot defeat a motion for summary judgment. Id. at 252.

The facts themselves, and the inferences to be drawn from those facts, must be viewed in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). A party may not rest on the mere allegations or denials of its pleading but must cite “particular parts of materials in the record” or “show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “When faced with cross motions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotations and citations omitted).

“Because claims brought under the APA are adjudicated without a trial or discovery, on the basis of an existing administrative record, such claims are properly decided on summary judgment. Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. U.S. Dep't of Transp., 524 F.Supp.2d 642, 659 (D. Md. 2007); see also Deese v. Esper, 483 F.Supp.3d 290, 303-04 (D. Md. 2020).

B. Background^[2]

1. Statutory and Regulatory Framework

a. “Up or Out” Policy

Under the Defense Officer Personnel Management Act, 10 U.S.C § 611 et seq., the U.S. Army, Air Force, Marine Corps, and Space Force follow an “up or out” system. In this system, officers who hold the grade of captain or major and are deferred for promotion twice in a row must ordinarily be discharged. 10 U.S.C. § 632. But this rule has exceptions. One such exception is 10 U.S.C. § 632, which permits an officer to be continued on active duty “subject to the needs of the service” if she is selected by a continuation board. This case concerns the decision of the Secretary not to continue a servicemember, after the servicemember was selected by a continuation board for continuation on active duty pursuant to 10 U.S.C. § 632.

b. DoDI 1320.08

The Secretary of Defense, who is tasked with implementing the statutes cited above, promulgated DoDI 1320.08. See 10 U.S.C. § 637(e) (“The Secretary of Defense shall prescribe regulations for the administration of this section.”). The version of DoDI 1320.08 effective at all relevant times states:

The Secretary of the Military Department concerned may, when the needs of the respective Military Service require, convene continuation selection boards according to section 611(b) of Reference (d) to recommend commissioned officers in the grade of O-4 on the Active Duty List who are subject to discharge or retirement according to section 632 of Reference (d) for continuation on the Active Duty List according to section 637 of Reference (d). A commissioned officer on the Active Duty List in the grade of O-4 who is subject to discharge according to section 632 of Reference (d) shall normally be selected for continuation if the officer will qualify for retirement according to section 3911, 6323, or 8911 of Reference (d) within 6 years of the date of continuation. The Secretary of the Military Department concerned may, in unusual circumstances such as when an officer's official personnel record contains derogatory information, discharge an officer involuntarily in accordance with section 632 of Reference (d). When the Secretary of the Military Department concerned intends not to continue larger pools of officers in the grade of O-4 who would qualify for retirement within 6 years of the date of a continuation, the Secretary shall notify the USD(P&R) of the proposed course of action.

DoDI 1320.08, para. 6.3, Continuation of Officers Serving in the Grade of O-4.

c. Military Correction Boards

Military Correction Boards are established under 10 U.S.C. § 1552. Under that section, the Secretary of each military department may establish “boards of civilians of the executive part of that military department” to “correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.” Id. § 1552(a)(1). “Corrections under [10 U.S.C. § 1552] shall be made under procedures established by the Secretary concerned” and approved by the Secretary of Defense. Id. § 1552(a)(3)(A).

Procedures governing the Board are set forth in 32 C.F.R. § 865 et seq. The Board has a responsibility to, in appropriate cases, “direct[] correction of military records to remove an error or injustice, or recommend[] such correction.” Id. § 865.2. The burden is on the applicant to provide “sufficient evidence of material error or injustice.” Id. § 865.4. However, the Board may “get additional information and advisory opinions on an application from any Air Force organization or official,” “ask the applicant to furnish additional information regarding matters before the Board,” and reconsider its decisions when an applicant presents “newly discovered relevant evidence that was not reasonably available when the application was previously considered.” Id. §§ 865.4(1)-2 & 865.6(a).

2. Factual Background

a. The Secretary's Memorandum to the USD(P&R)

In a memorandum dated December 6, 2010, the Secretary of the Air Force informed the Under Secretary of Defense for Personnel and Readiness (“USD(P&R)”) of his intention to exercise his purported authority to not selectively continue officers in Ms. Garcia's position. AR 45.^[3] The memorandum stated in its entirety:

In our continuing efforts to manage our officer corps and bring us within Congressionally mandated end-strength, I intend to exercise my authority contained in DoDI 1320.08, para 6.3, to not selectively continue large pools of twice-deferred officers in the grades of O-3 and O-4 who would otherwise qualify for retirement within 6 years of the date of a continuation. Exceptions to this decision will be some Chaplains (i.e., Catholic Priests), some rated (i.e., Remotely Piloted Aircraft Operators), and some Nurse Corps (i.e., Flight and Operating Room Nurses).

Id.

b. Ms. Garcia's Discharge and Initial Petition to the Board

On March 9, 2011, Ms. Garcia was not selected for promotion to the rank of...