Brown v. McHugh , 972 F. Supp. 2d 58 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HENRY BROWN JR., )
)
Plaintiff, )
)
v. ) Civil Case N0. 12-01071 (RJL)
)
JoHN M¢HUGH, )
Secretary of the Army, ) F 1 l.. E D
)
Defendant. ) SEP 2 3 2013
Clerk, U.S. Dist_rict & Bankruptcy
Courts tor the Drstrict of Co|umbia
MEMORANDUM OPINION
sepremberj£_'?zoiz [## 11, 141
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 Judgrnent. Because plaintiff has failed to state a claim upon which
relief can be granted, defendant’s motion is GRANTED and plaintiffs 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.
l
# l] 1111 6, 8, 16, 2l. ln 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. 11 l9; 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. l7, 2004) ("Army Reg. 623-105"), at 11 1-7(a). As part
of the Arrny’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. 11 l-S(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 111 2-10,
2- 14. The rater and senior rater evaluate the officer on the GER by checking "yes" or
"no" in boxes for certain attributes, ski1ls, and actions; rating performance and potential
for promotion on a continuum; and writing narrative comments. Ia’. at 1]1] 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. 11 l9; 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
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and guidance than should be required" by an officer of his rank; that he was lacking in
leadership, comrnunication, 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.
11 20; A.R. at 32-33. The ASRB denied his appeal in February 2008. Compl. 11 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.
1111 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. jl l, 24;
A.R. at ll-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. §
l552(a); see also Army Reg. 623-105 at W 6-8(f), 6-l0(a).
In his application to the ABCMR, plaintiff contested the adverse rating he
received for his communication skills. See A.R. at ll-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
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time periods before and after the October 2005 OER, Compl. 11 24; A.R. at l4-l7.
Plaintiff also asserted that his rater failed to perform required counseling and feedback,
A.R. at l4, l7-20, and he claims that he argued that his rater was biased. Compl. 11 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. 11 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. 11 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. 1111 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.
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Defendant has moved to dismiss plaintiffs complaint, and in the alternative has
moved for summary judgment. First, pursuant to Fed. R. Civ. P. l2(b)(l), 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. # ll] ("Def.’s Mot.") at 9-l0. Plaintiff concedes that
these two prayers for relief are "non-justiciable." Pl.’s Cross-Mot. Summ. J. [Dkt. # 141
("Pl.’s Mot.") at ll; Pl.’s Reply at 2. Therefore, 1 will treat those claims as conceded and
dismiss them. See also Kreis v. Sec ’y ofthe 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 plaintiffs claim of rater bias under the APA must be
dismissed under Fed. R. Civ. P. l2(b)(6) because he waived this claim by failing to raise
it before the ABCMR. Def.’s Mot. at l4-l6. Finally, defendant argues that plaintiffs
due process claim must also be dismissed under Rule l2(b)(6) because plaintiff has not
asserted a cognizable property or liberty interest. Ia’. at ll-l4. For the following reasons,
l find that plaintiffs 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 l2(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 (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." Dz`strict of Columbz`a v. Az`r Fla., Inc., 750 F.2d 1077, 1078
(D.C. Cir. 1984). "[A] plaintiffs obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a forrnulaic recitation of the
elements of a cause of action will not do." Twombly, 550 U.S. at 555 (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 (2009) (alteration in original)
(quoting Fed. R. Civ. P. 8(a)(2)).
ln considering a motion under Rule l2(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. Fenly, 580 F. Supp. 2d 86, 89-90 (D.D.C. 2008); Smz'th v.
United States, 475 F. Supp. 2d l, 7 (D.D.C. 2006) (citing EEOC v. St. Francis Xavier
Parochial Sch., ll7 F.3d 621, 624 (D.C. Cir. 1997)). The court "may consider only the
facts alleged in the complaint, any documents either attached to or incorporated in the
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complaint[,] and matters of which [the court1 may take judicial notice." EEOC v. Sl.
Francz`s Xavz'er Parochial Sch., ll7 F.3d 621, 624 (D.C. Cir. 1997).1
II. Rater Bias Claim
Plaintiff claims that the October 2005 OER was "uncharacteristically negative"
because it resulted from his rater’s bias, and therefore the ABCMR should have granted
his request to remove that report from his service record as an "error" or "injustice."
Compl. 1111 l9, 25; see 10 U.S.C. § l552(a)(l). Unfortunately for plaintiff, however, l
agree with defendants that he did not properly raise this argument of bias before the
ABCMR, and thus he failed to exhaust his administrative remedies. Accordingly, this
claim must be dismissed for failure to state a claim. See Marshall v. Honeywell Tech.
Solutions, Inc., 536 F. Supp. 2d 59, 64 n.6 (D.D.C. 2008) ("motions to dismiss for failure
to exhaust administrative remedies are more appropriately analyzed under Rule l2(b)(6)"
(citation omitted)); Marcelus v. Correctz'ons Corp. of Am., 540 F. Supp. 2d 231, 235 &
n.4 (D.D.C. 2008) (same).
Administrative law "requir[es] proper exhaustion of administrative remedies,
which ‘means using all steps that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits)."’ Wooaford v. Ngo, 548 U.S. 81, 89 (2006)
(emphasis in original) (citation omitted). In short, a plaintiff must "give the agency a fair
and full opportunity to adjudicate [his] claims," icl., in the first instance by expressly
raising his grounds for relief in the administrative proceedings before seeking judicial
' In his complaint, plaintiff references both his application to the ABCMR and the ABCMR’s decision,
Compl. 1111 9, 24-26, and therefore this Court will treat those documents as incorporated into the complaint
for purposes of defendant’s Rule l2(b)(6) motion.
review thereof. See Cobum v. McHuglz, 679 F.3d 924, 931 (D.C. Cir. 2012) ("It is well
understood that ‘[a] reviewing court usurps [an] agency’s function [if] it sets aside [an]
administrative determination upon a ground not theretofore presented and deprives the
[agency] of an opportunity to consider the matter, make its ruling, and state the reasons
779
for its action. (quoting Unemployment Comp. Comm ’n ofAlaska v. Aragon, 329 U.S.
143, 155 (1946))). When a plaintiff fails to do so, he waives judicial review of any claim
he did not raise before the agency. See CSX Transp., Inc. v. Surface Transp. Bcl., 584
F.3d 1076, 1078, 1079 (D.C. Cir. 2009) ("[T]he well-established doctrine of issue waiver
. . . permits courts to decline to hear arguments not raised before the agency where the
party had notice of the issue." (citing United States v. L.A. Tucker TruckLines, 344 U.S.
33, 35-37 (1952))).
Here, plaintiff asserts in his complaint that he made an "argument [to the
ABCMR] including but not limited to that the OER rater was biased . . ." Compl. 11 25,
and that therefore the ABCMR’S decision was unsupported by the evidence because
"[t]he evidence clearly shows that the rater, COL Rutkowski was biased, and that his
adverse OER was an injustice." Compl. 11 33. But that conclusory assertion is the only
factual allegation of bias in plaintiffs complaint, And, crucially, plaintiff did not raise
the argument that his rater was biased against him anywhere in his application to the
ABCMR. See A.R. at 11-22.
Instead, plaintiff s application was "based on" (1) providing countervailing
evidence of his good communication skills and writing ability_in the form of a letter
from another officer and positive OERs from other time periods-to contradict the
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evaluation by his October 2005 OER raters, and (2) arguing that his rater failed to
perform adequate counseling. A.R. at 14. As plaintiff stated in his application, the
"essence of [his] complaint is that he was not told of the perceived shortcomings," and
thus the adverse October 2005 OER "came as a total surprise to him." A.R. at l9. But
this is far from a claim of bias. Plaintiff presented no factual evidence to the ABCMR
that his rater was biased against him. And, even construing the facts in plaintiffs favor,
it is simply not plausible to view his submission of positive reviews from other officers
(which, with the exception of the Birong letter, covered different time periods than the
OER at issue), along with his allegation that his rater failed to perform adequate
counseling, as raising a claim of bias by his rater.z
Moreover, the ABCMR’s decision itself reflects that plaintiff failed to raise a
claim of bias in those proceedings. With the exception of using the word "unbiased"
once, A.R. at 9, nowhere in its decision does the ABCMR discuss any argument of bias
raised by plaintiff. Instead, the decision focuses on the new evidence plaintiff presented
that reflected positively on him. A.R. at 3-l0. While plaintiff correctly points out that
the ABCMR used the word "unbiased" in one conclusion paragraph of its decision, Pl.’s
Mot. at 14-15, Pl.’s Reply at 3, this sole reference cannot bear the weight plaintiff puts on
it. The ABCMR decision stated: "[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." A.R. at 9 (emphasis
2 ln fact, even in his cross-motion and reply briefs, plaintiff fails to point to anything in his ABCMR
application that shows he raised a claim of bias to that Board. Instead, he relies on two sentences in one
paragraph of the ABCMR’s own decision, one of which uses the word "unbiased." Pl,’s Mot. at 14-l 5;
Pl.’s Reply at 3.
added). Read in context, therefore, the ABCMR’s use of the word "unbiased" refers not
to any allegation of bias raised by plaintiff`, but instead paraphrases the applicable
regulation, which states that the responsibility of the rater is to "[p]rovide an objective
and comprehensive evaluation of the rated officer’s performance and potential." See
Army Reg. 623-105 at 11 2-ll (emphasis added).
By failing to raise the argument of bias before the ABCMR, plaintiff did not give
the agency an opportunity to consider and rule on that claim in the first instance.
Accordingly, the claim must be dismissed because plaintiff failed to exhaust his
administrative remedies and thus waived judicial review of that claim before this Court.
See CSX Transp., Inc., 584 F.3d at 1079.
III. Procedural Due Process Claim
Plaintiff has also failed to state a claim that he was denied due process because he
has not alleged a deprivation of any cognizable property or liberty interest. To bring a
procedural due process claim, plaintiff must show (1) a deprivation by the government,
(2) of a liberty or property interest, (3) without due process of law. See Lightfoot v.
Dz`strz`ct of Columbia, 273 F.R.D. 3 l4, 319 (D.D.C. 201l) (citing Propert v. District of
Columbz`a, 948 F.2d 1327 , 1331 (D.C. Cir. 1991)). In order "to determine whether due
process requirements apply in the first place," therefore, this Court "must look to see if
the interest is within the Fourteenth Amendment’s protection of liberty and property."
See Board of Regents ofState Colls. v. Roth, 408 U.S. 564, 570-71 (1972).
Here, plaintiff claims that the October 2005 OER "essentially ended [his] career"
and forced him to retire, and that but for that adverse OER, he would have stayed in the
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military and been promoted. Compl. 11 18. But the law is clear that "there is no protected
property interest in continued military service." Spaa’one v. McHugh, 842 F. Supp. 2d
295, 304 (D.D.C. 2012) (quoting Wz'lhelm v. Caldera, 90 F. Supp. 2d 3, 8 (D.D.C. 2000));
see also Pauls v. See ’y of the Az`r Force, 457 F.2d 294, 297 (lst Cir. 1972) ("It is well-
established law that military officers serve at the pleasure of the President and have no
constitutional right to be promoted or retained in service"). Accordingly, plaintiff s
complaint has not set forth a property interest that would trigger constitutional due
process protections.
Likewise, plaintiff has failed to assert any liberty interest that might implicate
procedural due process protections. A government employee may have a liberty interest
in his employment under one of two theories: (1) a "reputation-plus" theory, or (2) a
"stigma or disability" theory. Okpala v. Distrz'ct of Columbia, 819 F. Supp. 2d 13, 16
(citing O’Donnell v. Barry, 148 F.3d ll26, 1 139-40 (D.C. Cir. 1998)). Under a
"reputation-plus" theory, plaintiff must show an adverse employment action paired with
official defamation, ia’., and the adverse employment action must be either discharge or at
least a demotion in rank and pay. 0 ’Donnell, 148 F.3d at 1140. Here, plaintiff was
neither discharged nor reduced in rank as a result of the October 2005 OER, and thus he
cannot succeed on a "reputation-plus" theory.
Under a "stigma or disability" theory, on the other hand, plaintiff must show an
adverse employment action that leads to a continuing stigma or disability "that foreclosed
[the plaintiff s1 freedom to take advantage of other employment opportunities." Id.
(quoting Roth, 408 U.S. at 573). Again, not only was there no adverse employment
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action here, but plaintiff suffered no reputational harm or stigma because he received an
honorable discharge upon retirement, and he has not alleged that his October 2005 OER
has become public. See Knehans v. Alexana’er, 566 F.2d 312, 314 & n.2 (D.C. Cir. 1977)
(mere fact of Arrny officer’s honorable discharge and nonretention does not harm
reputation or foreclose future employment opportunities, especially where reasons for
nonpromotion were not publicly disseminated).
Instead of asserting a property or liberty interest, plaintiff instead attempts to cast
the alleged due process violation as the Army’s failure to follow its own regulations.
Compl. 1111 35-36. Citing Antonuk v. United States, 445 F.2d 592, 595 (6th Cir. 1971), for
the proposition that "[v]iolation by the military of its own regulations constitutes a
violation of an individual’s right to due process of law," Compl. 11 36, plaintiff argues he
suffered a due process violation because the Army failed to adhere to Army Regulation
623-105 when "Plaintiff was not evaluated in a fair and unbiased manner; and Plaintiff
was never counseled as to any alleged deficiencies in his performance." Compl. 11 35; see
also Pl.’s Reply at 2.
But unfortunately for plaintiff, the Antonuk court’s generalization that the
military’s failure to follow its own regulations amounts to a due process violation does
not withstand scrutiny in light of subsequent developments in the law-namely, the
Supreme Court’s alteration of the analytical framework for approaching procedural due
process questions. See Roth, 408 U.S. at 570-71 ("to determine whether due process
requirements apply in the first place, [the court1 must look not to the ‘weight’ but to the
nature of the interest at stake . . . to see if the interest is within the Fourteenth
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Amendment’s protection of liberty and property"). "Process is not an end in itself. Its
constitutional purpose is to protect a substantive interest to which the individual has a
legitimate claim of entitlement." Olim v. Wakz'nekona, 461 U.S. 23 8, 250 (1983). Thus,
"‘ [o1nly after finding the deprivation of a protected interest do[es] [the Court] look to see
if the [government’s1 procedures comport with due process."’ Chamness v. McHugh,
814 F. Supp. 2d 7, 16 (D.D.C. 201l) (quoting Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S.
40, 59 (1999)) (emphasis added). Accordingly, not every failure of the military to follow
its regulations is a per se due process violation, but rather only those that implicate a
protected liberty or property interest.z Plaintiff has failed to show such a violation here,
CONCLUSION
Thus, for all of the foregoing reasons, the Court GRANTS defendant’s Motion to
Dismiss or, in the Alternative, for Summary Judgment, and DENIES plaintiffs Cross-
Motion for Summary Judgment, A separate Order consistent with this ruling
flaw
RICHARD J. lSE.d
United States District Judge
accompanies this Memorandum Opinion.
3 1n fact, the Ant0nuk decision is consistent with this caveat. In that case, the plaintiff was an Army
reservist who contested the validity of an administrative activation order requiring that he report for active
duty. Though the case was decided before Roth and thus not phrased in terms of a "liberty interest," the
court clearly indicated that the plaintiff faced deprivation of liberty because, if the activation order were
upheld, "his liberty will be significantly limited by military discipline, and there is a significant risk that
he might be wounded in battle or even killed." Antonuk, 445 F.2d at 594.
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