Lambert v . Navy CV-09-354-PB 7/22/11
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Colonel Gary E . Lambert
v. Civil N o . 09-cv-00354-PB
Opinion N o . 2011 DNH 117
Raymond E . Mabus, Jr.,
Secretary of the Navy
MEMORANDUM AND ORDER
10 U.S.C. § 14704 establishes the procedures that the
Secretaries of the Army, Air Force, and Navy must follow when
making reductions to a Reserve Active Status List (“RASL”).
Section 14704 requires the Secretary of the relevant military
department to determine the size of the reduction but leaves it
to a specially convened “selection board” to identify the
specific officers who will be targeted for removal.
Colonel Gary Lambert challenges a decision of the Secretary
of the Navy to remove him from the Marine Corps’ RASL. His
principal argument is that the Secretary failed to comply with §
14704 when he convened the selection board that recommended his
removal. The parties have filed cross motions for summary
judgment.
I. BACKGROUND
A. Regulatory Framework
All officers in the Marine Corps active reserve, except
warrant officers, are listed on the Marine Corps’ RASL. See 10
U.S.C. § 101(c)(7) (stating that the RASL is “a single list . .
. that contains the names of all officers of that armed force
except warrant officers . . . . ” ) . The RASL is ordered
according to grade.1 See
10 U.S.C. § 14003(a). “Officers
serving in the same grade” are further ordered according to
rank.2 See
10 U.S.C. § 14003(a). “Rank among officers of the
same grade . . . is determined by comparing dates of rank. An
officer whose date of rank is earlier than the date of rank of
another officer of the same or equivalent grade is senior to
1
An officer’s grade is “a step or degree, in a graduated scale
of office or military rank, that is established and designated
as a grade by law or regulation.”
10 U.S.C. § 101(b)(7). The
commissioned grades in the Marine Corps are: General, Lieutenant
general, Major general, Brigadier general, Colonel, Lieutenant
colonel, and Major. See
10 U.S.C. § 5502.
2
The term “rank” is defined as “the order of precedence among
members of the armed forces.”
10 U.S.C. § 101(b)(8).
[2]
that officer.” 10 U.S.C. § 741 ( b ) . Generally, an officer’s
date of rank is the date of his or her appointment to their
respective grade. See
10 U.S.C. § 741 (d)(2).
Section 14704 authorizes the Secretary of a military
department to remove officers from the RASL when the Secretary
determines that “there are in any reserve component . . . too
many officers in any grade and competitive category who have at
least 30 years of service computed under section 14706 of this
title or at least 20 years of service computed under section
12732 of this title.” 10 U.S.C. § 14704(a). To accomplish a
reduction in the RASL, the Secretary must convene “a selection
board . . . to consider all officers on that list [the RASL] who
are in that grade and competitive category, and who have that
amount of service . . . .”
Id. The selection board must in
turn recommend “officers by name for removal from the reserve
active-status list, in the number specified by the Secretary by
each grade and competitive category.”
Id.
The Department of Defense has issued instructions bearing
on the removal of officers from the RASL. See Department of
Defense Instruction (“DODI”) 1332.32. DODI 1332.32, which
applies to all military departments, states that selection
[3]
boards “may be convened by the Secretary of the Military
Department concerned, as circumstances warrant, to accommodate
Military Service needs.” Id. at 4.2. DODI 1332.32 instructs
that “[t]he names of officers on the Reserve Active Status List
to be considered shall include those in the same grade and
competitive category whose position is between, and including
that o f , the most junior and the most senior officer in that
grade and competitive category who meet the amount of service
requirement . . . .” Id. at E2.2.
The Secretary of the Navy has adopted internal regulations
that specifically apply to the removal of naval and marine
reserve officers from the RASL. See Secretary of the Navy
Instruction (“SECNAVINST”) 1420.1B. SECNAVINST 1420.1B notes
that the Secretary’s power to reduce the RASL “shall be used as
a means of managing an officer grade imbalance or strength
overage within a competitive category” and provides that the
Secretary “shall specify the number of officers, by either a
fixed number or percentage, which a selection board may
recommend for early retirement or removal.” Id. at 34-35.
SECNAVINST 1420.1B instructs that “[t]he list of officers
provided to a board for consideration . . . shall include each
[4]
officer on the ADL or RASL in the same grade and competitive
category whose position . . . is between that of the most junior
officer in that grade and competitive category whose name is
provided and that of the most senior officer in that grade and
competitive category whose name is provided to the board . . .
.” Id. at 3 5 . In addition, SECNAVINST 1420.1B notes that the
“list [of officers provided to a selection board] may not
include an officer in that grade and competitive category who
has been approved for voluntary retirement or who is to be
involuntary [sic] retired under any provision of law during the
fiscal year in which the selection board is convened or during
the following fiscal year.” Id. at 35-36.
A person seeking to challenge an action of the Secretary
based on the recommendation of a selection board is not entitled
to relief in any judicial proceeding unless “the action or
recommendation has first been considered by a special board . .
. .” 10 U.S.C. § 1558(f)(1). Following the decision of a
special board, “[a] court of the United States may review a
recommendation of a special board or an action of the Secretary
of the military department concerned on the report of a special
board” and “may set aside the action only if the court finds
[5]
that the recommendation or action was – (A) arbitrary and
capricious; (B) not based on substantial evidence; (C) a result
of material error of fact or material administrative error; or
(D) otherwise contrary to law.” Id. at § 1558(f)(3).
B. The FY09 Selective Retention Board
On October 1 4 , 2008 the Secretary issued a “Precept
Convening the FY09 USMCR Colonel Unrestricted Reserve Selection
Retention Board” (“SRB”). 3 In the Precept, the Secretary charged
SRB with “select[ing] up to 9 9 , but no fewer than 6 3 , [colonels]
for early removal from the Reserve Active-Status List (RASL).”
Admin. R. 145. The SRB was ordered to consider only those
“officers who have at least 20 years of service” and who “have
not been approved for voluntary retirement nor are to be
involuntarily retired under any other provision of law during
FY09 or FY10.” Id. at 147-48. The list of eligible colonels
the SRB considered did not include colonels with less than three
years' “time-in-grade” (i.e. three years in the position of
3
A Precept “is the legal document that orders a selection board
to convene.” Marine Corps Promotion Manual, Vol I , § 2003.
Precepts also instruct the selection board on the needs of the
Navy and the guidelines the selection board is to follow when
making selection decisions. See DODI 1332.32 at 4.4.
[6]
colonel). 4 Id. at 153-60.
Lambert, a reserve active duty colonel listed on the RASL,
was selected by the SRB for early removal and the Secretary
accepted the board’s recommendation that he be removed. Lambert
responded first by bringing an unsuccessful challenge before the
Board of Correction of Naval Records, and then by petitioning
this court for review. During the course of the litigation that
ensued, the parties agreed to have the case remanded for
consideration by a special board pursuant to 10 U.S.C. § 1558.
The special board reviewed the procedures used to convene
the FY09 SRB and determined that “the [SRB] did not violate 10
U.S.C. 14704, DOD Instruction 1332.32, SECNAV Instruction
1420.1B or the [SRB] precept.”5 Admin R. 552. As a result, the
4 The exclusion of those colonels with less than 3 years “time-in-grade” was designed to exclude from consideration those
colonels who would not be eligible for retirement at the grade
of colonel. See 10 U.S.C. § 1370(a)(2)(a)(noting that a
commissioned officer above the grade of major or lieutenant
commander “must have served on active duty in that grade for not
less than three years” in order for him or her to retire at that
grade). The parties disagree as to when the list was produced,
and who composed the list. However, resolution this dispute is
also immaterial to my adjudication of the present motion.
5
The special board was advised by two Judge Advocate General
(“JAG”) opinions. The board did not issue a detailed written
decision, but instead adopted the reasoning recited in these two
advisory opinions.
[7]
board recommended that “no correction be made to [Lambert’s]
naval record.” Id. The Secretary ultimately accepted the
special board’s recommendation and declined to restore Lambert
to the RASL. Id. at 567-69.
II. STANDARD OF REVIEW
A federal district court “may review a recommendation of
a special board or an action of the Secretary of the military
department concerned on the report of a special board” and “may
set aside the action only if the court finds that the
recommendation or action was – (A) arbitrary or capricious; (B)
not based on substantial evidence; (C) a result of material
error of fact or material administrative error; or (D) otherwise
contrary to law.” 10 U.S.C. § 1558(f)(3). Decisions of
military boards are reviewable by an “unusually deferential”
standard. Kreis v . Sec'y of the Air Force,
866 F.2d 1508, 1514
(D.C. Cir. 1989). “The court will not second-guess the merits
of a military promotion or retention decision as long as the
process of reaching that decision was proper.” Mori v . Dep’t of
Navy,
731 F.Supp.2d 4 3 , 47 (D.D.C. 2010).
[8]
III. ANALYSIS
Lambert argues that the Secretary violated § 14704 in two
ways. First, he contends that the SRB did not list officers for
removal in “the number specified by the Secretary,” as § 14704
requires, because the Secretary directed the SRB to provide a
range of “up to 99 but no fewer than 63 officers.” See 10
U.S.C. § 14704(a); Admin. R. 145. Second, he argues that the
Secretary’s exception from consideration for removal of colonels
scheduled for retirement and colonels with less than three
years’ time-in-service violated § 14704’s directive that a
selection board must “consider all officers” on the RASL with
the same grade and sufficient time-in-service to be eligible for
removal.6 See
10 U.S.C. § 14704(a); Admin. R. 147-48, 153-60.
6
Lambert also claims that the special board’s ruling affirming
the Secretary’s decision was arbitrary and capricious because it
merely concurred with the JAG advisory opinions that were
provided to the board when it made its decision. Section 1558
does not impose any detailed reporting requirements on a special
board. In a similar context, other courts have held that when a
promotion special selection board (a counterpart to the § 1558
special board) “submits a written report satisfying the
statutory reporting requirements, a reviewing court may not
require the SSB to meet additional reporting requirements beyond
those that were mandated by [the statute].” Chambers v . Green,
544 F.Supp.2d 1 0 , 14 (D.D.C. 2008). In this case, the special
board’s statement that it concurred with the enclosed advisory
opinions was sufficient for Lambert to “discern the [b]oard’s
path” and for this court to “evaluate the agency’s rationale at
[9]
The Secretary responds to Lambert’s first argument by
contending that the statutory phrase “the number specified by
the Secretary” is ambiguous and should be read broadly to mean
“a number or a range of numbers.” His response to the second
argument is that the phrase “consider all officers” should be
read to permit the Secretary to designate a subset of eligible
officers that excludes both those scheduled for retirement and
those with less than three years’ time-in-service.
In the sections that follow, I explain in detail why the
Secretary’s responses to Lambert’s arguments are untenable. I
then turn to a difficult question concerning the relief to which
Lambert is entitled.
A. “The Number Specified by the Secretary”
Lambert invokes the plain meaning rule in arguing that the
Secretary erred by failing to designate a specific number of
officers to be recommended for removal. The First Circuit Court
of Appeals explained the way the plain meaning rule works in a
recent opinion:
[u]nless specifically defined, the legislature’s words
are generally deemed to carry their plain and ordinary
the time of the decision.” Dickson v . Sec’y of Defense, 68 F.3d
1396, 1404-05 (D.C. Cir. 1995); Cochrane v . Wynne,
541 F.Supp.2d
267, 271 n.2 (D.D.C. 2008).
[10]
meaning. When that meaning produces a plausible
result, the inquiry typically ends. Even s o , plain
meaning is not invariably the be all and end all of
statutory construction. If a plain-meaning
interpretation produces outcomes that are either
absurd or antithetical to [the legislature’s]
discernible intent, an inquiring court must continue
its search.
In re Shamus Holdings, LLC, 642 F.3d 263, 265 (1st Cir. 2011)
(internal citations and quotations omitted). As Lambert sees
i t , “the number specified by the Secretary” plainly means a
specific number rather than a range of numbers. Since this
reading produces a plausible result that is not contrary to §
14704’s manifest purpose, he argues, that ends the matter.
The Secretary contends - without explaining why - that the
relevant statutory language is ambiguous. He goes on to claim
that the use of a range rather than a specific number should be
permitted because the use of a range is consistent with §
14704’s purpose to provide him with “flexibility to develop
reasonable, fair, and efficient procedures for resolving officer
overages.” Mem. in Supp. of Def.’s Objection to Pl.’s Mot. for
Summ. J. & Def.’s Cross Mot. for Summ. J. at 2 3 . He also
contends that the court should defer to his reading of the
statute because the use of a range rather than a specified
[11]
number is implicitly permitted by the SECNAVINST 1420.1B.7
I am unpersuaded by the Secretary’s conclusory assertion
that the phrase “in the number designated by the Secretary” is
ambiguous. The only reasonable way to read this phrase in
context is to read it to require the Secretary to specify a
specific number rather than a range of numbers. While the
Secretary’s alternative reading might provide him with
beneficial leeway in a limited set of circumstances, the statute
will not produce absurd results if it is given its plain
meaning. Nor are the consequences that follow from such a
reading antithetical to a discernable legislative purpose.
Section 14704 plainly leaves it to the Secretary to decide on
the size of the reduction, but requires the selection board to
identify the specific officers who will be recommended for
7
SECNAVINST 1420.1B provides that the Secretary “shall specify
the number of officers, by either a fixed number or percentage,
which a selection board may recommend . . . .” 1420.1B at 3 5 .
It also states that “[t]he Secretary will furnish the board with
“[t]he maximum number of officers that the board may recommend
for early retirement or early removal . . . .” Id. at 3 6 . The
Secretary argues that these two provisions should be read
together to authorize the Secretary to provide a range rather
than a fixed number. I am not persuaded by this argument but,
as I explain, the Secretary’s argument is unavailing in any
event because § 14704’s language is unambiguous and hence no
deference can be given to the Secretary’s contrary reading of
the statute.
[12]
removal. Neither the Secretary nor this court has the power to
ignore a statute’s plain meaning simply because an alternative
interpretation might be deemed to be beneficial to the executive
branch official that has been charged with its interpretation.
My analysis of the issue does not change even i f , as the
Secretary argues, SECNAVINST 1420.1B implicitly authorizes the
Secretary to specify a range of numbers rather than a single
number. A court considering whether to defer to an
administrative construction of a statute must begin its analysis
by asking whether “Congress has directly spoken to the precise
question at issue.” Succar v . Ashcroft, 394 F.3d 8 , 22 (1st
Cir. 2005) (quoting Chevron, U.S.A., Inc. v . Natural Res. Def.
Council, Inc.,
467 U.S. 8 3 7 , 842 (1984)). If Congress has
unambiguously expressed its intention on the issue, the court
may not defer to an alternative administrative interpretation.
See Chevron,
467 U.S. at 842-43. In determining congressional
intent, the plain meaning rule remains at the forefront of the
analysis. Saysana v . Gillen,
590 F.3d 7 , 13 (1st Cir. 2009).
Ordinarily, “[w]hen the plain wording of the statute is clear,
that is the end of the matter.”
Id. Because, as I have
explained, the statutory language plainly requires the Secretary
[13]
to specify a number rather than a range of numbers, contrary
administrative interpretations are inconsequential.
B. “Consider All Officers”
Lambert again invokes the plain meaning rule in arguing
that the Secretary improperly prevented the selection board from
considering officers for removal who were scheduled for
retirement or who had less than three years’ time-in-grade.
Section 14704, he argues, authorizes the Secretary to convene a
selection board “to consider all officers” on the RASL with the
designated grade and sufficient time-in-service to be eligible
for removal. It does not contain exceptions either for officers
who are scheduled for retirement or for officers who have less
than three years’ time-in-grade.
The Secretary again responds by arguing, in a conclusory
fashion, that the statutory language is ambiguous. He then
attempts to justify his position with public policy arguments
and references to SECNAVINST 1420.1B, which he claims authorize
his actions.8 These arguments fail, however, for the same
8
SECNAVINST 1420.1B expressly provides that “[t]he list [to be
provided to the selection board] may not include an officer in
that grade and competitive category who has been approved for
voluntary retirement or who is to be involuntary [sic] retired
under any provision of law during the fiscal year in which the
[14]
reasons that his prior arguments are unavailing. The statutory
language is plain, and an ordinary reading of the statute does
not produce results that are either absurd or antithetical to
the statute’s manifest purpose. Although there are undoubtedly
good reasons why the Secretary may wish to exclude officers from
consideration for removal if they are set to retire or they have
insufficient time-in-grade to be eligible to retire as a
colonel, the Secretary retains ample authority to protect such
officers from removal even if the statute’s plain meaning is
enforced. Section 14704 does not bar the Secretary from
offering guidance to a selection board as to the criteria that
it may consider in proposing reductions to the RASL, and it
would not violate the statute for this guidance to explain that
consideration should be given to the fact that an officer on the
selection board is convened, or during the following fiscal
year.” SECNAVINST 1420.1B at 35-36. It also states that the
list “shall include each officer on the ADL or the RASL in the
same grade and competitive category position on the ADL or RASL
is between that of the most junior officer in that grade and
competitive category whose name is provided and that of the most
senior officer in that grade and competitive category whose name
is provided to the board . . . .” Id. at 35 (emphasis added).
The Secretary argues that this provision purports to authorize
the Secretary to exclude junior officers with less than a
specific time-in-grade from consideration for removal. I accept
the Secretary’s interpretation for purposes of analysis.
[15]
RASL is set to retire or has insufficient time-in-grade to be
eligible to retire as a colonel. Further, selection boards only
make recommendations for removal; the Secretary retains the
power to decline to accept a board’s recommendation to remove
officers who are set to retire or who have insufficient time-in-
grade to be eligible to retire as colonels. Accordingly, the
plain language of § 14704 does not tie the Secretary’s hands in
ways that are contrary to the statute’s manifest purpose.
The Secretary has one additional argument that applies only
to this particular challenge, and that is that the Secretary’s
interpretation should be adopted because it would harmonize §
14704 with 10 U.S.C. § 638.
Section 6 3 8 , which was was adopted prior to § 14704, deals
with the removal of officers from the Active Duty List. 9 Unlike
§ 14704, § 638 expressly provides that the list submitted to a
selection board may not include any officer “who has been
approved for voluntary retirement . . . or who is to be
involuntarily retired . . . during the fiscal year in which the
selection board is convened or during the following fiscal
9
Section 638 was created in 1980 as part of the Defense Officer
Personnel Management Act (“DOPMA”). Section 14704 was enacted
in 1994 as part of the Reserve Officer Personnel Management Act
(“ROPMA”).
[16]
year.” 10 U.S.C. § 638(e)(2)(B). Section § 638 also expressly
restricts the pool of eligible officers to those who have
“served at least four years of active duty in that grade.”
10
U.S.C. § 638(a)(1)(B).
The Secretary suggests that his interpretation of § 14704
should be adopted because it will harmonize § 14704 with the
plain language of § 638. A court, however, may not give a
statute’s unambiguous language a reading contrary to its plain
meaning merely because it will make the statute fit better with
other similar statutory provisions. Ordinarily, when a statute
omits specific provisions included in an earlier, similar
statute, a court should assume that the specific provisions were
not intended to be included in the most recently enacted
statute. See Muscogee (Creek) Nation v . Hodel, 851 F.2d 1439,
1444 (D.C. Cir. 1988)(“It is contrary to common sense as well as
sound statutory construction to read the later, more general
language to incorporate the precise limitations of the earlier
statute”); Klein v . Republic Steel Corp.,
435 F.2d 7 6 2 , 765-66
(3rd Cir. 1970). While Congress chose to include language in §
638 excluding certain active duty officers from the selection
board’s consideration, § 14704 lacks any such filtering
[17]
language. Instead, § 14704 instructs selection boards convened
for the purpose of evaluating reserve officers for early removal
to consider “all officers” on the RASL who meet the applicable
grade, competitive category and time in service requirements.
See 10 U.S.C. § 14704(a). Given the language that Congress
chose to use in § 14704, it would defy both common sense and
accepted principals of statutory construction to incorporate the
restrictions recited by § 638 into the procedures required by §
14704. See id.; Muscogee (Creek) Nation,
851 F.2d at 1444.
C. The Remedy
10 U.S.C. § 1558(f)(3) authorizes a court to “set aside the
action” of a Secretary based on the report of a special board if
the action is contrary to law. As I have explained, the Precept
that the Secretary used to convene the FY09 SRB violated §
14704. The special board’s endorsement of the Secretary’s
action therefore was also contrary to law, as was the
Secretary’s refusal to correct his prior illegal actions in
reliance on the special board’s report. Accordingly, the
Secretary’s action must be set aside.
The parties disagree as to whether additional actions are
required to correct the Secretary’s erroneous application of §
[18]
14704. Lambert asserts that the court must also order the
Secretary to reinstate him to the RASL. The Secretary argues
that the matter should be remanded for further administrative
proceedings.
Typically, when a reviewing court finds error with an
administrative proceeding, remand is the appropriate remedy.
See Dantran, Inc. v . U.S. Dep’t of Labor, 171 F.3d 5 8 , 73 (1st
Cir. 1990). This also is the case where an error is found in an
underlying military personnel decision, as these determinations
are properly left in the hands of the Secretary. See
10 U.S.C.
§ 1558(a); Seifert v . Winter,
555 F.Supp.2d 3 , 15-16 (D.D.C.
2008); Istivan v . U.S.,
689 F.2d 1034, 1039 (Ct. C l . 1982). If
remand would be an empty exercise, however, the court may be
required to take more aggressive measures to overcome the
administrative error. See Dantran,
171 F.3d at 7 3 ; Quincy Oil,
Inc. v . Fed. Energy Admin.,
468 F. Supp. 383, 378-88 (D. Mass
1979).
Lambert argues that a remand with instructions to the
Secretary to reconvene a new selection board would be a futile
gesture because the new selection board could not recreate a
fair removal proceeding. The Secretary has responded with
[19]
evidence suggesting that he will be able to fairly approximate
“the official military personnel files (OMPF) of the
Unrestricted Reserve colonels to be considered anew by a second
removal board, as their records were at the time the first
removal board convened.” Mem. in Resp. to Oral Order of May 2 0 ,
2011 at 6; Decl. of M r . William G. Swarens at 1-2 (indicating
that the office of Manpower Management Support Branch is capable
of recreating sufficient records for a fair and adequate
reconsideration).10 As a result, I am confident that Lambert
will be given a fair hearing where his record is considered
along with the records of all the unrestricted reserve colonels
that were on the RASL at the time of the FY09 SRB.11 If the new
selection board determines that Lambert would not have been
selected as part of the FY09 SRB, § 1558 provides for his
10
Lambert submitted a declaration contesting the ability of M r .
Swarens and the Manpower Management Support Branch’s ability to
recreate the official military personnel files and other records
as they existed as of the October 1 7 , 2008 selection board
proceedings. Lambert has not demonstrated that he has
sufficient knowledge on the subject to give rise to a genuine
factual dispute on this issue, and there is no point in
conducting any further hearings on the matter.
11
While the Secretary is unable to replicate the personal
statements submitted by those colonels up for consideration,
this material was presumably only submitted as support for the
applicant’s case. As such, its absence should not unfairly
burden Lambert.
[20]
retroactive reinstatement from the date of the original
erroneous FY09 SRB. See 10 U.S.C. § 1558 (a),(c).
IV. CONCLUSION
The Secretary did not comply with 10 U.S.C. § 14704 when he
convened the FY09 SRB. As a result, the Secretary’s refusal to
correct his illegal action on the special board’s recommendation
must be set aside. While Lambert contends that any additional
proceedings would be futile, the Secretary has the resources to
provide Lambert with a fair reconsideration on remand.
Lambert’s motion for summary judgment (Doc. N o . 35) is
granted in part and denied in part. The Secretary’s cross-
motion for summary judgment (Doc. N o . 37) is denied. The matter
is remanded to the Secretary. The Secretary shall issue a new
Precept specifying a fixed number of colonels to be selected by
the selection board.12 The Precept must require the selection
board to consider all colonels on the RASL at the time when the
FY09 SRB was convened who had sufficient time-in-service to be
eligible for removal. A new selection board should then be
12
In order to best replicate the FY09 SRB, the Secretary should
specify that the special board select a fixed number between the
range specified in the original Precept.
[21]
convened, pursuant to § 14704, to evaluate each eligible colonel
on the RASL as of October 1 7 , 2008. If Lambert is not selected
by the reconstituted selection board, he is entitled to
reinstatement and attendant benefits pursuant to § 1558.
SO ORDERED
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
July 2 2 , 2011
cc: Gary E . Lambert, Esq.
T . David Plourde, Esq.
[22]
