United States District Court, W.D. Pennsylvania
James S. FRAZIER, Jr., Plaintiff,
Secretary Ray MABUS, U.S. Dept. of the Navy; Executive Director W. Dean Pfeiffer, Board for Correction of Naval Records, Defendants.
[Copyrighted Material Omitted]
James S. Frazier, Jr., McKeesport, PA, pro se.
Jennifer R. Andrade, United States Attorney's Office, Pittsburgh, PA, for Defendants.
MEMORANDUM OPINION ON MOTION OF DEFENDANTS TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
LISA PUPO LENIHAN, United States Chief Magistrate Judge.
The Motion to Dismiss or In the Alternative for Summary Judgment filed by Defendants Secretary Ray Mabus, U.S. Dept. of the Navy (hereafter the " Navy" ), and Executive Director W. Dean Pfeiffer, Board for Correction of Naval Records (hereafter the " BCNR" ) (also collectively " Defendants" ), in this pro se plaintiff's action for reconsideration of his remedial promotion will be denied in part and granted in part. The case is appropriate for review on the administrative record. The Court finds that it has (a) original jurisdiction, under 28 U.S.C. Section 1331, over Plaintiff's equitable claims arising from final federal agency action under federal
regulations, and regarding the actions of Defendants under the Administrative Procedure Act (the " APA" ), 5 U.S.C. Section 701 et seq. ; and (b) concurrent jurisdiction with the Federal Court of Claims, under 28 U.S.C. § 1346 (the " Little Tucker Act" ), over Plaintiff's claims for potential money damages arising from remedial promotion and limited to an amount under $10,000, as amended. The Court further finds that the case states cognizable and plausible claims which are sufficiently supported to preclude the alternative requests of Defendants' Motion. Said Motion will also be granted in part as, to the extent Plaintiff seeks remedial promotion directly from this Court, it is well established that " a request for retroactive promotion falls squarely within the realm of nonjusticiable military personnel decisions." Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989).
The Court further concludes that the Navy and United States Marine Corps (hereafter the " Marine Corps" ) violated binding agency regulations in considering Plaintiff's promotion when he was incarcerated on civilian criminal charges (of which he was subsequently acquitted) and the BCNR's denial of Plaintiff's challenge to that invalid proceeding was thus outside the agency's authority or discretion and contrary to law. In light of the (a) nonjusticiability of his remedial promotion, and (b) subjective/discretionary considerations applicable under the Marine Corps rules and regulations governing Plaintiff's qualification for promotion, the case must once again return to the Defendants for further proceedings— to be undertaken in accordance with relevant law and this Opinion. The Court expects that, given the now eight (8) year history of the matter, Defendants' decision(s) will be rendered with all due promptness.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff, in his Complaint filed pro se in April, 2010, and as amended in December, 2011, includes allegations that the Marine Corps' selection board decision denying his remedial promotion from Master Sergeant to Master Gunnery Sergeant was in violation of Defendants' regulatory policies/procedures, including Promotion Policy paragraph 1203 and Promotion Restriction paragraph 1204, and the BCNR's denial of his related petition(s) for correction/redress was therefore contrary to law. He seeks retroactive promotion to Master Gunnery Sergeant, with related adjustment of his retirement rank, and revision of his military record. See Amended Complaint at 8, para. 34.
Plaintiff served from January 1998 through September 2005 as a Master Sergeant (at an employment compensation Grade of E-8) in the Individual Ready Reserve division (the " IRR", a division for those officers with prior service) of the United States Marine Corps Reserve Component (the " MCR" ). Due to a record-keeping error in the Marine Corps Total
Force System (" MCTFS" ), a personnel computer database, Plaintiff's pay entry base date (his " PEBD" ) (which was " time of service" determinative) was listed as November 1977 instead of 1976 and, as a result, he was not included with other Marine Corps candidates for consideration for promotion to Master Gunnery Sergeant (at a Grade of E-9)— a promotion for which he was otherwise eligible for consideration— when the Marine Corps' regularly-scheduled selection board for Staff Non-Commissioned Officers (the " SNCO" selection board) convened in January, 2004  and made its annual review and promotion recommendations for Fiscal Year 2004.
The error was discovered, and fifteen (15) months later— on March 15, 2005— Plaintiff requested and his Commander submitted— as was the Commander's prerogative regarding a Marine he deemed qualified for promotion— that Plaintiff be given remedial consideration under regulatory policies and procedures providing for review by an Enlisted Remedial Selection Board (the " ERSB" ). This request was approved by the Commandant on March 18, 2005. Within a week of these events, Plaintiff was arrested on charges of attempted second degree murder arising from a domestic shooting incident involving a family member who was also a member of the Marine Corps— charges of which he was ultimately found not guilty. Plaintiff was acquitted following a civilian criminal trial concluding in late March, 2007, at which time the jury found he had acted in self-defense. As a result of these pending criminal charges, however, Plaintiff was incarcerated from March 21, 2005 to July 26, 2005, and again from August 23, 2006 to March 26, 2007. See R. at 250.
Consequent to his civilian arrest, Plaintiff was processed for " administrative separation (discharge)" from the Navy, and a promotion restriction was entered to his employment record in the MCTFS on April 8, 2005. See Defendants' Brief at 10; R. at 179 (Command Unit Diary Entry noting Promotion Restriction and Administrative Separation Pending). On April 26, 2005, Plaintiff's Commander of the Marine Corps Mobilization Command " initiated the administrative separation proceedings against Plaintiff" for his Other Than Honorable (" OTH" ) Discharge " by signing a ‘ Notification of Separation Proceedings' " , and directing correspondence by Certified Mail to Plaintiff (not at his place of incarceration) both informing Plaintiff that the Commander intended to recommend his discharge for Misconduct and advising Plaintiff of an extensive list of rights (including submission of written statements, consultation with Naval counsel, request for a hearing, copies of all documents,
etc.). See R. at 23 " Notification of Separation Proceedings" to Plaintiff from Mobilization Commander S.E. Brown).
On May 4, 2005, Plaintiff's PEBD was corrected and he was scheduled for consideration by the ERSB. See R. at 164; Defendants' Brief at 10. On May 11, 2005, during Plaintiff's initial period of incarceration and subsequent to the Commander's above correspondence, the ERSB nonetheless proceeded with its scheduled consideration of Plaintiff's remedial promotion. He was not recommended. Defendants assert, and there is no contrary documentary evidence, that (1) the record provided to the ERSB was properly redacted to January 12, 2004 (the date the regular selection board would have considered Plaintiff's promotion but for the erroneous PEBD in his personnel file), and (2) the remedial selection board was not privy to any information regarding Plaintiff's civilian arrest or incarceration, or his ongoing military administrative separation proceedings. See Defendants' Brief at 10-11; see also infra at n. 15 (discussing limitations of Administrative Record).
The Commandant approved the decision of the ERSB on May 16 and Plaintiff's pass over for promotion was noted to his record on May 24th. On July 22, 2005 his administrative separation package was forwarded by his Commander of the Mobilization Command to the Court Martial Convening Authority, Commanding General of the Marine Forces Reserve, recommending Other than Honorable (" OTH" ) Discharge for Misconduct (Commission of a Serious Offense) related to the civilian criminal indictment. See Defendants' Brief at 11; R. at 145; Amended Complaint at 4. On September 2, 2005, Plaintiff received an OTH discharge, with a re-enlistment code of RE-4, rendering him ineligible for re-enlistment, and a demotion from Master Sergeant (a Grade of G-8) to Lance Corporal (a Grade of G-3). See Defendants' Brief at 11; R. at 138. As noted above, Plaintiff's civilian trial was completed approximately eighteen (18) months later, in March, 2007, and the jury concluded that he had acted in self-defense. Id. He was therefore acquitted.
Three months thereafter, in June, 2007, Plaintiff petitioned the BCNR  to have his OTH discharge and RE-4 re-enlistment code rescinded, his Master Sergeant E-8 rank restored, and his record expunged with respect to the civilian charges. See Defendants' Brief at 11. The BCNR issued its recommendation on this petition in December, 2007— restoring Plaintiff's rank to Master Sergeant and transferring him to the Retired Reserve effective September 2, 2005 (the date he had been discharged). See Defendants'
Brief at 11-12; R. at 234-236 (correspondence from Acting Recorder of the BCNR to Secretary of the Navy recommending corrective action, noting that (1) owing to his incarceration, Plaintiff did not receive notice of his administrative processing or his option to request retirement rather than administrative separation, (2) Plaintiff " served for many years in an excellent manner", and (3) " was ultimately found not guilty of the offenses which resulted in his discharge" ).
In March, 2008, Plaintiff filed a second petition, requesting that the promotion restriction and passed-over promotion entries be expunged and that he receive remedial consideration for promotion to Master Gunnery Sergeant.  See Amended Complaint at 6. This petition was denied without a hearing by the BCNR nine (9) months later, on January 16, 2009. See R. at 140 (correspondence stating that BCNR " substantially concurred" with the June 25, 2008 Advisory Opinion  and found " the promotion restriction by reason of your administrative separation proceedings did not affect your remedial consideration for promotion" ). The BCNR also denied Plaintiff's request for reconsideration in December, 2009.
As noted, Plaintiff instituted this action four months later, in April, 2010, and in August of that year, it was dismissed upon the parties' Joint Stipulation of Dismissal and agreement that the BCNR would reconsider Plaintiff's petition. A year later, on August 18, 2011, the BCNR again denied Plaintiff's petition (hereafter the " August 2011 BCNR Decision" ), concluding that there was no " probable material error or injustice" where Plaintiff was eligible to be considered for promotion by the ERSB because he " was not in confinement when the regular promotion board [i.e., the 2004 SNCO selection board] convened. " See R. at Appendix Vol. X, pp. 1-2 (emphasis added). The Decision by the BCNR indicates that it " considered Advisory Opinions from the Headquarters Marine Corps" dated October 14, 2010 and June 29, 2011. Litigation before this Court was accordingly reopened and Plaintiff's Amended Complaint filed in December, 2011.
Plaintiff's Amended Complaint brings claims under the APA,
5 U.S.C. Section 706, and other statutory provisions. The parties disagree on critical matters of interpretation of the applicable regulatory policies and procedures  and, as discussed infra, the fundamental question before this Court is whether, under the APA, the Defendants' interpretation is plainly erroneous or inconsistent with its regulations, and thus " contrary to law." See, e.g., Pettiford v. Sec'y of the Navy, 858 F.Supp.2d 86, 91-92 (D.D.C.2012) (applying standard of review to Marine Corps' promotional regulations, rules and policies for " selection boards" ); discussion infra at 612.
III. RELEVANT MARINE CORPS PROMOTIONAL PROCEDURES; STATUTORY PROVISIONS AND REGULATIONS
The regulations for administration of the Marine Corps Reserve Components are extensive, and the comprehensive Appendix and Exhibits provided by Defendants have been reviewed in their entirety by this Court.
A. Defendants' Summation
As Defendants recount, " [b]y statute, each military department is required to prescribe regulations for the administration of reserve components" and for the time period relevant to this action, administration of the MCR was prescribed in the MCR Administration Management Manual (" Order P1001R.1J" ) of March 10, 1999. Each military department is also required " by statute to establish standards and qualifications for retention and promotion in reserve components" and the " Marine Corps Manual" is the basic and binding " regulatory publication for the Department of the Navy", as " issued by the Commandant
of the Marine Corps and approved by the Secretary of the Navy." Defendants' Brief at 2-3; Appendix Ex. B (relevant portions of Marine Corps Manual).
Regulatory promotional policies and procedures are, in turn, " prescribed by the Commandant of the Marine Corps [and] contained in the Marine Corps Promotion Manual and other directives." Id. at 3; Appendix Ex. B at para. 0002. The Marine Corps Promotion Manual in effect for the time relevant to this action was dated October 30, 2000 (Order or MCO " P1400.32C" ; hereafter also the " Promotion Manual" ) and was " the authority for all enlisted promotions in the Marine Corps." Id. & n. 5 (noting that 2000 Promotion Manual was superseded by MCO P1400.32D in May, 2006); id. at 24-25; see also Defendants' Ex. C. It " publishes regulations and policies concerning enlisted promotions"  and provides procedures for personnel within each grade and " occupational field" or " military occupational specialty" (" MOS" ) to compete (by, e.g. comparison of eligible personnel records) for promotion. 
The promotion of Staff Non-Commissioned Officers (" SNCOs" ) such as Plaintiff was " based on recommendations made by selection boards ... convened [by the Commandant] each calendar year" and on the allowable number of Marines that could be recommended for each occupational field/MOS (the " allocations" or " allotments" ). Defendants' Brief at 4. The annual selection boards determined the " best and fully qualified" candidates utilizing their Official Military Personnel Files (" OMPFs" ) and based on " demonstrated performance [ ], leadership, professional and technical knowledge, experience, growth potential, motivation, military proficiency, physical fitness, personal appearance, conduct, moral character and maturity." Id. at 5 (quoting Promotion Manual at para. 3100(1)). Recommendations were made to the Commandant who retained authority over the final determinations. Id.
" Marine SNCOs who were eligible for promotion consideration but were not properly considered by the relevant regularly scheduled section board", for reasons such as " incorrect eligibility criteria" could be granted discretionary remedial consideration on a case-by-case basis. Such cases were referred " to the Enlisted Remedial Selection Board (‘ ERSB’ ) which, unlike the regularly convened selection boards, convened as necessary on a non-regular basis." Id. at 6 (citing Promotion Manual para. 3601-3602). Because ERSBs " were not constrained by the allocation restrictions applicable to the regularly scheduled boards", they " were tasked with selecting ‘ fully qualified’ [rather than ‘ best and fully qualified’ ] Marines." Id. at 7 (citing Promotion Manual and additional Promotional Directive issued July 21, 2000 " concerning the operation and function of the ERSB" — MCO 5420.16C— Appendix Ex. D). In addition, " the record of any Marine referred to the ERSB was redacted to prevent the board from considering any material that post-dated the regularly scheduled selection board for which the remedial promotional consideration was granted." Id.
Finally, Defendants note, in their summation of the applicable policies, that the entry of a " promotion restriction" against
a Marine by his Commander " prohibited the commander of a Marine SNCO from effecting a promotion [but] did not prohibit the SNCO from being considered for promotion selection." Id. at 7-8 (citing Policy Manual at para. 1204(3)(u) (as example of distinction between " consideration and actual promotion" ) and 1203(18)(d)); id. at 29 (citing 1204(3)(z), (bb) and (cc) as prohibiting only " a Marine's actual promotion, not promotion consideration or even selection" ). According to Defendants, a " promotion restriction ...