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Junius L. Baugh v. Ray Mabus

March 25, 2011

JUNIUS L. BAUGH, PLAINTIFF,
v.
RAY MABUS, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court are a Motion for Summary Judgment ("Navy Motion") by Defendant Ray Mabus, Secretary of the Navy ("the Navy") and a Cross Motion for Summary Judgment ("Plaintiff Motion") by Plaintiff Junius L. Baugh ("Plaintiff"). For the reasons set forth below, Defendant's Motion is granted and Plaintiff's Motion is denied.

I. BACKGROUND

Plaintiff commenced this action in equity against the Navy under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., by filing a Complaint on January 29, 2010. Plaintiff seeks reinstatement and retroactive promotion first to the position of Commander (level 0-5) and then to the position of Captain (level 0-6).*fn1 The central issue in this case is whether the Navy erred by refusing to issue Plaintiff replacement fitness reports for the time periods February 1, 1993 through January 31, 1994, and February 1, 1994 through July 8, 1994 (collectively, "Contested Fitness Reports").*fn2 In March of 1994, Plaintiff filed a petition with the Board for Corrections of Naval Records ("BCNR") requesting that the fitness report dated January 31, 1994 and any forthcoming fitness report from his immediate supervisor be removed from his file. Plaintiff alleged that the Contested Fitness Reports were low due to racial discrimination and retaliation for challenging prior fitness reports on the same basis. On October 20, 1994, a majority of a three-person panel sitting for the BCNR determined that the Contested Fitness Reports should be removed from Plaintiff's file because of the appearance of reprisal. However, the Board specifically declined to authorize Plaintiff's Immediate Superior in Command ("ISIC") to submit replacement fitness reports for the periods covered by the Contested Fitness Reports. The BCNR gave the following reasons for refusing to order replacement fitness reports: (1) Plaintiff did not specifically request such relief; (2) the BCNR did not know whether Plaintiff would accept the reports submitted by the ISIC; and (3) the BCNR felt that Plaintiff could alleviate confusion caused by the gap in his records by communicating with a selection board considering him for promotion. The BCNR recommended that a memorandum ("Fitness Memorandum") be issued to replace Plaintiff's fitness reports from July 1, 1989 through July 8, 1994.
Pursuant to 32 C.F.R. 723.6(e)(ii), the BCNR forwarded their decision to Assistant Secretary of the Navy (Manpower and Reserve Affairs) Bernard Rostker (" former Assistant Secretary Rostker").*fn3 In a memorandum dated November 22, 1994, Assistant Secretary Rostker, directed Plaintiff's ISIC to make replacement fitness reports. In addition to this instruction, former Assistant Secretary Rostker also included a limiting instruction stating "since the Board acts for a remedial purpose, the ISIC reports may not be filed in [Plaintiff's] records if they are lower than the reports removed." Plaintiff's ISIC was Rear Admiral Louise Wilmot ("RADM Wilmot"). RADM Wilmot declined to issue replacement reports because she had never met Plaintiff and felt that she could not issue them in good faith. (A.R. 000004.)

On December 30, 1994, Assistant Head of Records Control and Quality Assurance Section A.J. Drexler, placed a Fitness Memorandum in Plaintiff's file. On January 18, 1995, Head Officer of the Fitness Reports Branch, M. Diane Dubay, reported to the BCNR that she had removed the Contested Fitness Reports as directed but was unable to obtain substitute fitness reports from Plaintiff's ISIC. She further went on to state that Plaintiff's ISIC was unable to provide the requested reports because Plaintiff's ISIC claimed she had "no knowledge of [Plaintiff]." (A.R. 000004.)

In May, 1995, after the Fitness Memorandum was placed in Plaintiff's file, Plaintiff was promoted to Lieutenant Commander through the convening of a special board. (Compl. ¶ 5.) The Navy backdated Plaintiff's promotion to October 1, 1993. (AR 000033.) Plaintiff acknowledges the promotion and states that he was promoted from the position of lieutenant (0-3) to the position of lieutenant commander (0-4). Id.

In a letter dated December 1, 1998, Plaintiff's former counsel John Cotter ("Cotter"), wrote to Richard Danzig, the Secretary of the Navy, and requested that replacement fitness reports be placed in Plaintiff's file for the two time periods in 1993 and 1994. (A.R. 000011.) In a letter dated February 11, 1999, the current Assistant Secretary of the Navy for Manpower and Reserve Affairs Carolyn H. Becraft ("Assistant Secretary Becraft"), responded to Cotter's Letter. (A.R. 000007.) She noted that her predecessor, Assistant Secretary Rostker, had directed the replacement of the Contested Fitness Reports unless the replacement fitness reports were lower than the Contested Fitness Reports and she informed Cotter that the Navy had placed a Fitness Memorandum in Plaintiff's file. Id. Assistant Secretary Becraft explained that, given RADM Wilmot's unfamiliarity with Plaintiff, the Navy could not accommodate Plaintiff's request for replacement fitness reports. Id.

On March 19, 1999 Cotter responded to Assistant Secretary Becraft's letter, and requested that she reconsider her determination not to carry out the decision of her predecessor, former Assistant Secretary Rostker. Cotter also directed that replacement fitness reports be prepared for Plaintiff. In a letter dated April 20, 1999, W.A. DeCicco, counsel for the Navy, informed Cotter that his letter was forwarded to the Office of the Chief of Naval Personnel and that the Navy hoped to have a response to Cotter shortly. In a memorandum dated June 16, 1999, the Office of the Chief of Naval Personnel reviewed the history of the matter and recommended that Assistant Secretary Becroft stand by her earlier decision to refrain from issuing replacement fitness reports. (A.R. 000006, 000010.)

In Plaintiff's Complaint, he claims that the Fitness Memorandum was insufficient and that the absence of replacement fitness reports prevented him from being promoted to the position of Commander (level 0-5).*fn4 In addition, Plaintiff claims that he was compelled to retire after twenty years of service because he was only promoted to the position of lieutenant commander (level 0-4).

On September 8, 2010, the Navy filed a Motion for Summary Judgment asserting that RADM Wilmot and Assistant Secretary Becraft's insertion of a Fitness Memorandum in Plaintiff's file was not arbitrary and capricious, and asserting the affirmative defense of laches. On December 21, 2010, Plaintiff filed an Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment. Plaintiff argues that the Navy was obligated to issue him replacement fitness reports and that the Navy's substitution of the Fitness Memorandum was unlawful. On January 25, 2011, the Navy filed a Response in Support of Its Motion for Summary Judgment asserting the same arguments but adding that Plaintiff is not entitled to the relief sought.

II. STANDARDS OF REVIEW

A. Affirmative Defense of Laches

Laches is defined as the neglect or delay in bringing suit to remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes prejudice to the adverse party and operates as an equitable bar. McKesson Info. Sys., LLC v. Trizetto Group, Inc., 426 F. Supp. 2d 203, 208 (D. Del. 2006) (citations omitted). The elements of laches are: (1) lack of due diligence by the party against whom the defense is asserted and, (2) prejudice to the party asserting the defense. DeGussa Constr. Chem. Operations, Inc. ...


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