Mendez v. United States , 540 F. App'x 986 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAWRENCE MENDEZ, JR.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5033
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0160, Judge Christine O.C. Miller.
______________________
Decided: September 17, 2013
______________________
LAWRENCE MENDEZ, JR., of Oceanside, California, pro
se.
MATTHEW F. SCARLATO, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Principal Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and HAROLD D. LESTER, JR., Assis-
tant Director.
2 MENDEZ, JR. v. US
______________________
Before O’MALLEY, CLEVENGER, and TARANTO, Circuit
Judges.
PER CURIAM.
Lawrence Mendez, Jr., a former United States Marine
Corps officer, appeals a decision of the United States
Court of Federal Claims that denied his request for cor-
rection of his military records, reinstatement, and back
pay. Mr. Mendez, after receiving an adverse fitness
report, asked the Board for Correction of Naval Records to
remove the unfavorable report from his record. The
Board denied his request, and Mr. Mendez sued the
United States in the Claims Court. That court deter-
mined—with one exception that was later held cured after
remand—that the fitness report complied with Marine
Corps Order P1610.7F, the applicable Marine Corps
regulation. We affirm.
BACKGROUND
Mr. Mendez served as an officer of the Marine Corps.
In September 2006, he held the position of Battalion
Adjutant of the 1st Battalion, 12th Marine Regiment, 3rd
Marine Division. He and his unit were deployed to Iraq
in March 2007 as part of Operation Iraqi Freedom. In
July 2007, Mr. Mendez’s commanding officer relieved him
of his duties as Battalion Adjutant.
After his removal, the Marine Corps provided Mr.
Mendez with a fitness report, which evaluated his per-
formance from February 1, 2007, through July 28, 2007.
The report, prepared by a Reporting Senior, described Mr.
Mendez as deficient in various evaluation categories,
including Mission Accomplishment, Leadership, Intellect
and Wisdom, and Individual Character. The Reporting
Senior described Mr. Mendez as “unsatisfactory” when
compared to other Marines of the same grade and con-
MENDEZ, JR. v. US 3
cluded that Mr. Mendez should “not be considered for
promotion with [his] contemporaries.”
Mr. Mendez responded with his own description of the
events at issue and challenged the Reporting Senior’s
evaluation. In accordance with Marine Corps Order
P1610.7F, which includes the policies, procedures, and
administrative instructions for the preparation, submis-
sion, and processing of fitness reports, Mr. Mendez’s
adverse fitness report received two reviews by senior
officers. The first was by a Reviewing Officer, a lieuten-
ant colonel, who was required to “[a]ssess adverse reports
and adjudicate factual differences between the Reporting
Senior’s evaluation and [Mr. Mendez’s] statement.”
Marine Corps Order P1610.7F ¶ 2004.3.g. The Reviewing
Officer identified some inconsistencies between the Re-
porting Senior’s evaluation and Mr. Mendez’s statement.
After examining these inconsistencies, the Reviewing
Officer confirmed many of the Reporting Senior’s findings.
The next review was by a Third Officer Sighter, a
brigadier general, who examined the fitness report, Mr.
Mendez’s statement responding to that report, the Re-
viewing Officer’s findings, and a new statement from Mr.
Mendez responding to the Reviewing Officer’s findings.
Although acknowledging some areas of disagreement, he
confirmed the findings of the Reporting Senior and Re-
viewing Officer and concluded that Mr. Mendez “failed to
perform his duties to the satisfaction of both the [Report-
ing Senior] and the [Reviewing Officer].”
On December 3, 2008, Mr. Mendez filed an Applica-
tion for Correction of Military Record with the Board for
Correction of Naval Records, requesting removal of the
fitness report from his military record. Under the auspi-
ces of the Board for Correction, the Marine Corps Perfor-
mance Evaluation Review Board (PERB) conducted an
initial review of Mr. Mendez’s application and advised the
Board for Correction that the fitness report was “adminis-
4 MENDEZ, JR. v. US
tratively correct and procedurally complete” and that the
fitness review should remain a part of Mr. Mendez’s
official military record. Mr. Mendez filed a rebuttal
statement arguing that the fitness report was untrue and
unjust. On April 9, 2009, after considering the PERB’s
recommendation and Mr. Mendez’s response, the Board
for Correction denied Mr. Mendez’s request to remove the
fitness report from his records. One year later, after
receiving additional submissions, the Board for Correction
denied reconsideration. The Marine Corps discharged Mr.
Mendez in September 2010.
On March 14, 2011, Mr. Mendez filed a complaint in
the Claims Court alleging that the preparation and re-
view of the fitness report violated the governing regula-
tion, Order P1610.7F. According to Mr. Mendez, the
adverse report led to his being twice denied promotion to
the rank of captain and, as a result, to his involuntary
removal from the Marine Corps. Mr. Mendez sought
reinstatement and back pay, as well as the removal of the
report from his military record.
Mr. Mendez and the United States filed cross-motions
for judgment on the administrative record pursuant to
Claims Court Rule 52.1. On January 31, 2012, the Claims
Court issued its decision, reviewing each allegation by Mr.
Mendez and granting judgment on the merits in favor of
the United States on all but one issue. Mendez v. United
States, 103 Fed. Cl. 370 (Fed. Cl. 2012). The court first
rejected Mr. Mendez’s argument that the contested fitness
report was deficient because the Reporting Senior “failed
to individually address various character and perfor-
mance traits in evaluating plaintiff.” Id. at 378-79. The
court explained that paragraph 4006.1 of the Order, in
giving the Reporting Senior a “‘broad cross section of
areas to evaluate’” that together form a comprehensive
picture of the “‘Marine’s demonstrated capacities, abili-
ties, and character,’” does not require the Reporting
Senior to “provide narrative comments regarding each
MENDEZ, JR. v. US 5
attribute.” Id. at 382. The court found substantial evi-
dence that the Reporting Senior adequately considered
the necessary attributes as required by the regulation.
Id.The court also ruled that the Third Officer Sighter
had not added new, adverse information to the report
without giving Mr. Mendez an opportunity to respond. Id.The court reasoned that the Third Officer Sighter’s com-
ments were responsive to the information presented by
the Reporting Senior and Reviewing Officer, and that his
conclusions were not “new, adverse material” under
paragraph 5005.c.3 of the Order. Id.The court then addressed Mr. Mendez’s argument
that the fitness report did not comply with paragraphs
5005.3.a.(1) and 5004.1 of the Order. According to Mr.
Mendez, the Reviewing Officer and Third Officer Sighter
failed to resolve factual discrepancies between Mr. Men-
dez’s version of the events in question and the version
contained in the fitness report. 103 Fed. Cl. at 382.
Although Mr. Mendez alleged that there were several
examples of such unresolved factual discrepancies, the
court found only one supported by the record. Id.
The fitness report discussed an incident involving one
of Mr. Mendez’s subordinates whose wife would need care
after an upcoming routine surgery. Despite a Marine
Corps policy limiting the use of emergency leave from the
combat zone, the report said, Mr. Mendez did not timely
pursue the possibility of in-home care (by a company
called TRICARE) as a solution and, as a result, allowed
the subordinate to leave his post to return home. Id. at
372, 380. The “[Reviewing Officer had] indicated that a
workable solution—Tricare in-home medical care—was
available to assist” the subordinate’s wife and found Mr.
Mendez deficient in carrying out his shared responsibility
for finding a solution that would keep his subordinate
with his unit. Id. at 383. In his response, Mr. Mendez
6 MENDEZ, JR. v. US
had stated that (a) after he learned about the Tricare
possibility, he obtained the necessary contact information
for Tricare and directed his subordinate to make an
inquiry and (b) the resulting follow-up, which included a
conversation between the Tricare agent and the doctor of
the subordinate’s wife, led to the conclusion that “Tricare
did not offer the home care” needed. Despite this discrep-
ancy, the Third Officer Sighter reported that Mr. Mendez
“‘failed to thoroughly research available solutions that a
young Marine in his section needed.’” Id. The Claims
Court found that this statement “reflect[ed] that the
[Third Officer Sighter] had concluded that Tricare in-
home medical care was an available option, yet the [Third
Officer Sighter] did not indicate whether or not he took
steps to verify the availability of in-home care . . . in
accordance with” paragraphs 5005.3.a.(1)-(3) of the Order,
which required the Third Officer Sighter to try to resolve
any factual inconsistencies and to indicate what steps he
took and how the matter was resolved. Id. The Claims
Court explained that the “Tricare issue was a specific,
identifiable incident that plaintiff's command relied on
repeatedly to demonstrate his substandard performance.”
103 Fed. Cl. at 383. For that reason, the court remanded
the case with an instruction to the Board for Correction to
reconsider Mr. Mendez’s application after reviewing the
identified factual discrepancy. Id. at 384.
On August 20, 2012, the Board for Correction recon-
sidered the matter and again denied Mr. Mendez’s appli-
cation to remove the fitness report from his military
record, “finding that the evidence did not establish a
probable material error of injustice.” Mendez v. United
States, 108 Fed. Cl. 350, 355 (Ct. Fed. Cl. 2012) (Mendez
II). In Mr. Mendez’s favor, the Board for Correction
observed that the Commandant of the Marine Corps had
directed modification of Mr. Mendez’s military record to
remove any reference to the Tricare issue from the fitness
report. Id. Nevertheless, the Board for Correction con-
MENDEZ, JR. v. US 7
cluded that the fitness report remained adverse even as
modified and that Mr. Mendez’s promotion would definite-
ly have been unlikely even without the Tricare infor-
mation. Id. Accordingly, the Board held that there was
no basis to set aside Mr. Mendez’s discharge. Id.On return of the case to the Claims Court, the parties
renewed their cross-motions for judgment on the (now
expanded) administrative record. On December 20, 2012,
the court ruled that the Board for Correction’s decision to
modify but not remove the fitness report was not arbi-
trary or capricious and was supported by substantial
evidence. Id. at 356. The court concluded that, in light of
the several independent adverse findings in the fitness
report, the Board for Correction could permissibly reject
Mr. Mendez’s allegation that the Tricare issue so “‘perme-
ates the entire fitness report’” as to require removing the
entire report and overturning the discharge. Id. at 357.
The Claims Court entered judgment in favor of the gov-
ernment.
Mr. Mendez timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We give de novo review to a legal determination of the
Claims Court, including its determination on the adminis-
trative record that the Board for Correction did not act
arbitrarily, capriciously, contrary to law, or without
substantial evidence. Roth v. United States, 378 F.3d
1371, 1381 (Fed. Cir. 2004). We note that the government
raises no question about justiciability, presumably be-
cause Mr. Mendez seeks outright removal of the fitness
report from his military record and the Board for Correc-
tion did not find that such removal would have had no
effect on his prospects for promotion. See Lindsay v.
United States, 295 F.3d 1252, 1258-59 (Fed. Cir. 2002).
8 MENDEZ, JR. v. US
Mr. Mendez argues on appeal that the report is both
procedurally and factually deficient. He first argues that
paragraph 4006 of the governing Order P1610.7F re-
quired that the Reporting Senior’s comments in the
fitness report contain sufficient content to be “verified,
considered substantial, or quantified.” Brief for Appellant
at 36. He contends that the fitness report’s statements
that he does “not accept responsibility for his short com-
ings,” that he “routinely deflects blame for problems that
he caused to subordinates,” and that his failure to super-
vise resulted in the “inability to process awards and
failure to secure sensitive personnel information” are
insufficient because they do not provide him with the
context necessary to challenge the allegations. Id. at 36-
37. Those statements, which the report supports with
several specific examples, were endorsed by the Review-
ing Officer and Third Officer Sighter. See, e.g., Supp.
App. at 48-49 (Reviewing Officer noting that Mr. Mendez
made a false statement regarding a reporting require-
ment that revealed his unwillingness to “accept responsi-
bility for his actions and statements”; describing instances
in which Mr. Mendez was “argumentative” and “insolent”
when he was confronted by superiors with shortcomings
in his performance); id. at 54 (Third Officer Sighter noting
Mr. Mendez’s attempt to “shift the blame for his failures
to others” in his statements).
The Board for Corrections could properly conclude
that the content of the fitness report meets the require-
ment of paragraph 4006. Paragraph 4006.1 explains that
“Sections D, E, F, and G comprise 13 attributes that give
the [Reporting Senior] a broad cross section of areas . . .
that the Marine Corps deems most important” to the
evaluation process. “Collectively these attributes provide
a clear picture of the Marine’s demonstrated capacities,
abilities, and character.” Id. at ¶ 4006.1.b. The Claims
Court correctly held that this language does not require
that the fitness report provide extensive narrative com-
MENDEZ, JR. v. US 9
ments specifically identifying each attribute. Mendez, 103
Fed. Cl. at 382. Rather, by focusing reviewing officers on
specific attributes, the regulation envisions that the
resulting report will present a comprehensive picture of
the Marine’s performance in critical areas. And Mr.
Mendez’s fitness report, even if not always through ex-
press citation to a specific attribute, addressed each
quality and provided concrete examples of Mr. Mendez’s
perceived deficiencies that Mr. Mendez could and did
address in response.
Mr. Mendez next argues that the Claims Court erred
because the government did not resolve alleged factual
discrepancies as required by paragraphs 5004 and 5005.3
of the Order. He alleges that the Claims Court “found
several disagreements, challenges, [and] inconsistencies .
. . that were not addressed as required” and that “created
and perpetuated a clear bias, injustice, and ultimate
acceptance of an unlawful invalid fitness report.” Brief
for Appellant at 45. But the Claims Court did not so find
as to any of the alleged unresolved “factual discrepancies”
that remain after the remand. The Claims Court instead
noted that the Third Officer Sighter was not required to
enumerate every factual dispute expressly, that a pre-
sumption exists that the Marine Corps conducted Mr.
Mendez’s fitness review “‘correctly, lawfully, and in good
faith,’” Arens v. United States, 969 F.2d 1034, 1037 (Fed.
Cir. 1992), and that—except for the TRICARE issue,
which is no longer a live one—there simply was not a
sufficient basis in the record for overturning the Board for
Correction’s finding that the review met the Order’s
requirements, including the requirement to address
factual discrepancies. Mendez, 103 Fed. Cl. at 381-83.
Given the deference due in the judicial review of agency
action, and the principle that implicit resolution of factual
disputes is not the same as failure to resolve them, we
have no basis for a different conclusion.
10 MENDEZ, JR. v. US
One specific contention by Mr. Mendez is that the Re-
porting Senior and Third Officer Sighter failed to consider
evidence that (1) his inability to process service awards
for soldiers and to secure confidential information was a
result of ineffective supervision, (2) he was not actually
required to enter the service awards, and (3) he relied on
reports from his subordinates that service awards had
been entered. See Brief for Appellant at 46, 49, 56.
Whether presented as a failure-to-resolve challenge or
some other challenge, this contention provides no basis for
reversal. The reviewing officers in fact considered the
evidence Mr. Mendez points to in making their determi-
nations. See Supp. App. at 47 (Reviewing Officer finding
failures “in the task of accurate accountability of person-
nel within the Task Force” and citing specific examples),
id. at 53 (Third Officer Sighter noting “disagreement”
concerning certain reporting but concluding that “what is
not in question is the fact that [Mr. Mendez] habitually
submitted late reports that often contained erroneous
data,” which Mr. Mendez conceded).
Mr. Mendez also alleges that the conclusions of the
Third Officer Sighter “were not derived from the state-
ments” he made and are “unsupported by the record.”
Brief for Appellant at 48. The Claims Court concluded
that the Third Officer Sighter’s comments were respon-
sive to the information presented by the Reporting Senior
and Reviewing Officer and did not constitute “new, ad-
verse information” under paragraph 5005.c.3 of the Order.
Mendez, 103 Fed. Cl. at 382. Mr. Mendez acknowledges
that the Claims Court was correct “that the [Third Officer
Sighter] is required to deduce and provide his comments
in adjudicating factual differences.” Brief for Appellant at
48. Mr. Mendez gives no example of the Third Officer
Sighter’s going beyond that required role to introduce new
facts. Mr. Mendez argues, for example, that the Third
Officer Sighter’s conclusion that he was “‘too involved
with the minutia of the section’” constitutes new, adverse
MENDEZ, JR. v. US 11
material, Brief for Appellant at 47 (citing Supp. App. 53),
but the quoted statement is just an evaluative comment
based on material already in the record, including Mr.
Mendez’s statement “that I was more involved in my shop
than perhaps I should have been.” Supp. App. at 51.
Mr. Mendez’s final argument on appeal is that the
Claims Court should have considered paragraph
1610.11D of the Order and that “[t]he comments and
actions provided by the PERB are not consistent” with
that provision. Brief for Appellant at 61. Mr. Mendez
raises this argument for the first time on appeal. Argu-
ments not made in the trial court are normally considered
waived in the absence of exceptional circumstances. Gant
v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005).
We find no such circumstances here, noting that Mr.
Mendez had counsel in the trial court and that all he has
done here is to make a broad-brush reference to a lengthy
provision of the Order and allege its violation. We decline
to address Mr. Mendez’s new argument.
CONCLUSION
Because Mr. Mendez has failed to demonstrate that
the Board for Corrections acted arbitrarily, capriciously,
contrary to law, or without substantial evidence, we
conclude that the judgment of the Claims Court should be
affirmed.
No costs.
AFFIRMED