Villarreal-Dancy v. United States Department of the Air Force

• Court: District Court, District of Columbia
• Decided: July 26, 2021
• Docket: Civil Action No. 2019-2985
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IDALIA VILLARREAL-DANCY,

Plaintiff,

v. Civil Action No. 19-2985 (RDM) UNITED STATES DEPARTMENT OF THE AIR FORCE et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Idalia Villarreal-Dancy served more than ten years in the Air Force. During her

time in the military, she amassed an impressive record, receiving numerous medals and other

awards. In 2000, however, Plaintiff failed a drug test and, following a military trial, was given a

punitive Bad Conduct Discharge. Thereafter, Plaintiff rebuilt her civilian life—earning an

associate degree, raising three children, and volunteering in her community. But her discharge

was still “an open wound.” Dkt. 29-1 at 77. So, in 2015, Plaintiff asked the Air Force to

upgrade her discharge classification to honorable, in part based on her “successful post-service

transition.” Id. at 3.

Federal law permits “[t]he Secretary of a military department [to] correct any military

record of the Secretary’s department when the Secretary considers it necessary to correct an error

or remove an injustice.” 10 U.S.C. § 1552(a)(1). Such corrections must “be made by the

Secretary acting through boards of civilians.” Id. In Plaintiff’s case, the Air Force Board for

Correction of Military Records (the “Board”) concluded that Plaintiff’s discharge should be

1 upgraded, based on her “honorable character and notable achievements” since leaving the

military. Dkt. 29-1 at 12. But the Acting Assistant Secretary of the Air Force for Manpower and

Reserve Affairs, acting on behalf of the Secretary, overruled the Board and denied Plaintiff’s

application. Id. at 3.

Plaintiff filed this lawsuit against the U.S. Department of the Air Force, the Secretary of

the Air Force, and the Assistant Secretary of the Air Force for Manpower and Reserve Affairs 1

(collectively, “Defendants”) to challenge the denial of her application under the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706. Plaintiff argues that the Acting Assistant Secretary

lacked authority, under the governing statute and regulations, to reverse the Board’s decision.

The Court concludes that the statute gives the Secretary (or his statutorily authorized delegee) the

power to overrule the Board. But the parties’ arguments on the regulatory question all miss the

mark, and the Court cannot determine from the present record whether the Acting Assistant

Secretary had authority—under the relevant regulations and overlapping delegations—to

exercise the Secretary’s statutory power to review the Board’s decision.

The Court will thus DENY Plaintiff’s motion for summary judgment, Dkt. 21. That

denial will be with prejudice on the statutory question but otherwise without prejudice. The

Court will GRANT in part and DENY in part Defendants’ cross-motion for summary judgment,

Dkt. 23. The motion will be granted on the statutory question but otherwise denied without

prejudice. The Court will DENY without prejudice Plaintiff’s motion to correct the

administrative record, Dkt. 30, which is premature. Finally, the Court will permit the parties to

renew their respective motions, focusing on the questions outlined below.

1 Under Federal Rule of Civil Procedure 25(d), current Acting Secretary of the Air Force John P. Roth and current Acting Assistant Secretary of the Air Force for Manpower and Reserve Affairs John A. Fedrigo are automatically substituted for their predecessors as Defendants. 2 I. BACKGROUND

A. Statutory and Regulatory Background

For much of the nation’s history, servicemembers seeking to have their military records

corrected “were forced to seek private bills in Congress.” Schwalier v. Panetta, 839 F. Supp. 2d

75, 82 (D.D.C. 2012), aff’d sub nom. Schwalier v. Hagel, 776 F.3d 832 (Fed. Cir. 2015).

Following World War II, Congress faced a “great number of private bills . . . at each session

requesting changes in servicemembers’ records,” Detweiler v. Pena, 38 F.3d 591, 597 n.5 (D.C.

Cir. 1994) (internal quotation marks and citation omitted), and legislators sought to “relieve

[themselves] of the burden of considering private bills to correct alleged errors and injustices in

the military system,” Strand v. United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020) (internal

quotation marks and citation omitted); see also 41 U.S. Op. Atty. Gen. 71 (1951). Through the

Legislative Reorganization Act of 1946, Congress created an administrative process for the

secretaries of the military departments, acting through “boards of civilian officers or employees,”

to correct military records. Pub. L. No. 79-601, § 207, 60 Stat. 812, 837 (1946). “Concerned

that service members returning to civilian life after World War II might be handicapped by bad

military records created without due process in the hurly-burly of the war, and that career

military officials would not be much interested in effecting corrections, Congress required the

service secretaries to act through boards of civilians.” Strand, 951 F.3d at 1351 (internal

quotation marks and citation omitted).

In its current form, the statute provides that “[t]he Secretary of a military department may

correct any military record of the Secretary’s department when the Secretary considers it

necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). With a limited

exception for certain “favorable” corrections not relevant here, id. § 1552(a)(2), “such

3 corrections shall be made by the Secretary acting through boards of civilians of the executive

part of that military department.” Id. § 1552(a)(1). Such boards operate “under procedures

established by the Secretary” of the relevant military Department. Id. § 1552(a)(3)(A). Either a

claimant or the relevant Secretary may file a request for correction with the Board. Id.

§ 1552(b).

The Air Force has promulgated regulations establishing the Board and “defin[ing] the

Board’s authority to act on applications.” 32 C.F.R. § 865.0. The Board’s membership consists

of “civilians in the executive part of the Department of the Air Force who are appointed and

serve at the pleasure of the Secretary of the Air Force.” Id. § 865.1. The Board sits in panels of

at least three members to consider each application, with one member serving as the panel chair.

Id. § 865.4(c). “The panel’s majority vote constitutes the action of the Board.” Id. § 865.4(h).

Under the regulations, the Board’s decision represents the agency’s final action in certain

circumstances, while other Board decisions are reviewed by the Secretary. Id. § 865.4(l). “The

Board acts for the Secretary of the Air Force and its decision is final when” the Board “[d]enies

any application,” other than an application related to whistleblower retaliation. Id. § 865.4(l)(1).

The Board also acts for the Secretary in rendering a final decision when it “[g]rants any

application in whole or in part” if the relief granted (1) “was recommended by the official

preparing the advisory opinion;” (2) “was unanimously agreed to by the panel;” (3) “does not

affect an appointment or promotion requiring confirmation by the Senate;” and (4) “does not

affect a matter for which the Secretary of the Air Force or his or her delegee has withheld

decision authority or required notification before final decision.” Id. § 865.4(l)(2). As to “all

other applications,” the Board instead “sends the record of proceedings . . . to the Secretary of

the Air Force or his or her designee for final decision.” Id. § 865.4(l)(3). When the Secretary

4 reviews a case, he or she “may direct such action as he or she deems appropriate . . . , including

returning the case to the Board for further consideration.” Id. § 865.5(a). “If the Secretary does

not accept the Board’s recommendation, the Secretary’s decision will be in writing and will

include a brief statement of the grounds for his/her final decision.” Id.

More broadly, the Secretary of the Air Force “is responsible for, and has the authority

necessary to conduct, all affairs of the Department of the Air Force.” 10 U.S.C. § 9013(b). And

the Secretary “may assign such of his functions, powers, and duties as he considers appropriate

to the Under Secretary of the Air Force and to the Assistant Secretaries of the Air Force.” 10

U.S.C. § 9013(f). The Secretary has delegated his authority to review Board decisions, including

some decisions that 32 C.F.R. § 865.4(l) treats as “final,” to his subordinates. Specifically, in

Headquarters Air Force Mission Directive 1-24, as amended on May 25, 2012, the Secretary

delegated to the Assistant Secretary of the Air Force for Manpower and Reserve Affairs

authority to make a final decision on all Board decisions, except those related to confidential

information or security clearances or related to other matters “with respect to which the Secretary

of the Air Force has reserved final decision authority.” Dkt. 23 at 18. 2 The Directive also

prohibits the Assistant Secretary from further delegating the authority “to deny an application for

correction of military records when correction has been recommended by unanimous or majority

vote of a panel of the Board.” Id. at 18–19. In 2017, because of a vacancy in the Assistant

Secretary position, the Acting Secretary of the Air Force at the time, Lisa S. Disbrow, issued a

2 The administrative record does not include the cited 2012 version of Headquarters Air Force Mission Directive 1-24, and the version available on the Air Force website appears to have been amended in 2019 and includes slightly different language than what is quoted in Defendants’ briefs. See Headquarters Air Force Mission Directive 1-24 (Jan. 28, 2019), https://static.e- publishing.af.mil/production/1/saf_mr/publication/hafmd1-24/hafmd1-24.pdf. The differences, however, do not appear to be material. 5 memorandum that “temporarily delegated to the Principal Deputy Assistant Secretary of the Air

Force for Manpower and Reserve Affairs . . . [a]uthority to make a final decision on all

applications to the” Board under § 1552, with the same exceptions as in Headquarters Air Force

Mission Directive 1-24. Dkt. 29-1 at 7. The delegation memorandum explained that the

temporary delegation “includes authority to grant or deny an application when the opposite

action has been recommended by a unanimous vote of a panel of the Board for Correction of

Military Records.” Id.

B. Factual and Procedural Background

Plaintiff joined the Air Force on November 16, 1988, and served more than ten years.

Dkt. 29-1 at 8. During that time, she traversed the globe, usually serving as a recreation

specialist on various air bases. She assisted Kurdish refugees as part of Operation Pacific Haven

while stationed at Anderson Air Force Base in Guam, id. at 57, and provided support to

Operation Desert Storm while stationed at Prince Sultan Air Base in Saudi Arabia, id. at 58. She

was responsible for planning sporting events at Torrejon Air Base in Spain, id. at 31, and ran a

fitness center at Elmendorf Air Force Base in Alaska, id. at 23. Plaintiff “had an almost perfect

performance record with no adverse actions and many commendations and awards.” Id. at 100.

Before her discharge, Plaintiff obtained the rank of staff sergeant (E-5), id. at 8, and received

several medals and other awards, including the Air Force Achievement Medal, Air Force

Commendation Medal, Air Force Good Conduct Medal, and Air Force Longevity of Service

Award, id. at 89.

Around October 2, 1998, Plaintiff “wrongfully used cocaine.” Id. at 8. She was tried in a

General Court-Martial and on December 9, 1998, was sentenced to sixteen days of confinement,

a Bad Conduct Discharge, and a reduction in grade to airman basic (E-1). Id. Plaintiff was

6 discharged on July 13, 2000, with a reentry code of 2M, which denotes “[s]erving a sentence or

suspended sentence of court-martial; or separated while serving a sentence or suspended

sentence of court-martial,” and a separation code of JJE, which denotes “Court Martial – Drug

Related Reason.” Id. at 9.

Plaintiff then reentered civilian life and, by all accounts, has done so successfully. In the

years following her discharge, she avoided any “derogatory involvement” with the legal system.

Id. at 12. Plaintiff held jobs as a photo processor and as a customer service agent for a car rental

company in the years immediately after she left the military. Id. at 76–77. She also worked for

the State of Alaska Child Support Division. Id. at 76. In 2003, she began work on an associate

degree in computer accounting at Charter College. Id. at 77. She twice made the dean’s list and

graduated in 2006, while pregnant with her third child. Id. While she was in school, Plaintiff

also worked as an administrative assistant for a home healthcare company. Id. In addition to

these professional activities, Plaintiff raised three children, serving during several periods as a

stay-at-home parent, and was a regular volunteer at her children’s school in Anchorage. Id. at

76–77. The school awarded her a certificate as an “Outstanding Parent Volunteer.” Id. at 71.

On July 7, 2015, Plaintiff applied pro se to the Board to upgrade her discharge

classification to honorable and to restore her rank. Id. at 15–16. Plaintiff sought a correction in

her records on several grounds. First, she argued that her “discharge was inequitable and unjust”

because the Court-Martial did not give sufficient weight to her ten years “of faithful and

outstanding” service, in comparison to her solitary infraction. Id. at 18. Second, she argued that

the Court-Martial proceeding had failed to consider evidence that mental illness, including

depression and anxiety related to her military service, contributed to Plaintiff’s drug use. Id.

Third, Plaintiff argued that she should have been afforded an opportunity for rehabilitation and

7 drug treatment before her discharge. Id. And finally, Plaintiff asked the Board to grant relief

based on “clemency,” including based on her successful reintegration into society following her

military career. Id. at 18, 20–21; see also Dkt. 21-1 at 18. Along with her application, Plaintiff

submitted more than sixty pages of exhibits, including five reference letters, her military records,

and various documents detailing her post-military life, such as her children’s birth certificates

and her college diploma. See Dkt. 29-1 at 23–87.

In considering Plaintiff’s application, the Board received a recommendation from the Air

Force Legal Operations Agency’s Military Justice Division (“JAJM”), id. at 94–96, and also

received an advisory opinion from the Board’s psychiatric advisor, id. at 99–101. JAJM

recommended denying Plaintiff’s application because she was “afforded all of her procedural

due process rights at trial and on appeal” and “because her allegations of error or injustice lack

merit and the application is untimely.” Id. at 95–96. The psychiatric advisor, however,

recommended that the Board upgrade Plaintiff’s discharge. The advisor explained that, at the

time of Plaintiff’s court-martial, the fact that she had been diagnosed with depression and anxiety

was omitted from the record. Id. at 100. “What was also not known at the time,” the advisor

continued, “was the fact she suffered from childhood abuse which led to the development of

[Post Traumatic Stress Disorder].” Id. Even so, Plaintiff had been deployed overseas and

received glowing performance reviews, which “impl[ies] that her condition was not considered

serious enough to interfere with her ability to perform her job.” Id. In the absence of more

detailed medical records, the advisor could not recommend a change to a medical discharge. Id.

at 101. Still, he recognized Plaintiff’s “honorable character and notable achievements from the

time that she left the military.” Id. Because Plaintiff had overcome her mental health conditions

to “continue[] to live with the core values of the Air Force,” the advisor opined that “it would be

8 unfair to leave her with the stigma” of her Bad Conduct Discharge. Id. The psychiatric advisor

thus recommended “a change of her discharge to a General under honorable conditions with the

narrative reason being by Secretarial Authority.” Id.

With these initial evaluations at its disposal, the Board turned to its own consideration of

Plaintiff’s application. At the threshold, the Board concluded that Plaintiff had exhausted all

other remedies and that, although the application was untimely, “it is in the interest of justice to

excuse the failure to timely file.” Id. at 11. Turning to the merits of Plaintiff’s application, the

Board granted “partial relief.” Id. at 12. The Board first concluded that Plaintiff had not shown

any error or injustice in the court-martial proceeding that would support reinstating her grade to

staff sergeant. Id. But the Board went on to conclude that “partial relief is warranted on the

basis of clemency.” Id. The Board emphasized Plaintiff’s “honorable character and notable

achievements in the over 16 years since her discharge, to include gainful employment, volunteer

work, and making the Dean’s list several times while pursuing her Associates Degree in

Computer Science.” Id. In the Board’s view, Plaintiff had “successfully transitioned to civilian

life.” Id. As such, her Bad Conduct Discharge “no longer serves a useful purpose,” and “it

would be unjust for her to continue to endure the effects of the stigma” associated with such a

discharge. Id. The Board therefore concluded that Plaintiff’s military records should be

“corrected to show that on [July 13, 2000], she was discharged with service characterized as

general (under honorable conditions),” with a reentry code of 3K, which is used by the Board

when no other code is appropriate, and with a “narrative reason for separation of ‘Secretarial

Authority,’ with the corresponding separation code of ‘JFF.’” Id. at 13.

In a letter dated October 16, 2017, the Acting Assistant Secretary of the Air Force for

Manpower and Reserve Affairs overturned the Board’s decision and denied Plaintiff’s

9 application in full. Id. at 3. After summarizing the Board’s reasoning, the Acting Assistant

Secretary provided a one-paragraph justification for his decision:

I believe the panel’s recommendation is inconsistent with Board actions in similar cases. Specifically, in the relatively few cases where the Board recommended upgrading a BCD, a punitive discharge which is the result of a criminal conviction, the applicants in those cases provided evidence of sustained contributions to their community in the many years since their punitive discharge. Most of the character based evidence provided by the applicant relates to her accomplishments prior to her 1998 court-martial. While I congratulate the applicant on a successful post-service transition, the fact remains she received a punitive discharge as a result of a general court-martial conviction for drug abuse. Contrary to the Board’s recommendation, I do not believe the evidence in this case is sufficient to conclude the applicant’s post- service activities are so meritorious that her BCD should be upgraded on the basis of clemency. Therefore, I deny the applicant’s requests. Please notify the applicant accordingly.

Id.

On October 3, 2019, Plaintiff filed this lawsuit to challenge the Secretary’s decision as

unlawful under the APA. Dkt. 1. After the Court held a pre-motion conference to clarify the

issues in the case, see Minute Entry (Mar. 12, 2020), Plaintiff moved for summary judgment,

Dkt. 21, and Defendants filed a cross-motion, Dkt. 23. Following the close of briefing on the

motions for summary judgment, Defendants filed the administrative record. Dkt. 29. Plaintiff

then filed a motion to correct the administrative record, Dkt. 30, which Defendants opposed, Dkt.

32. In compiling the administrative record, Defendants included a five-page excerpt of

Plaintiff’s military personnel records, but Plaintiff argues that the administrative record should

instead include the full 90-page version of her personnel file. Briefing on all three motions is

now complete, and the motions are ripe for decision.

II. LEGAL STANDARD

The APA directs courts to “hold unlawful and set aside agency action” that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,” as well as agency

10 actions taken “in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right.” 5 U.S.C. § 706(2). In an APA case, summary judgment “serves as a ‘mechanism for

deciding, as a matter of law, whether the agency action is . . . consistent with the APA standard

of review.’” Fisher v. Pension Benefit Guar. Corp., 468 F. Supp. 3d 7, 18 (D.D.C. 2020)

(quoting Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1, 9 (D.D.C. 2019)). In this context, “the

district judge sits as an appellate tribunal,” and “the entire case on review is a question of law.”

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation

marks omitted).

III. ANALYSIS

A. Statutory Authority

Plaintiff first argues that “[t]he Air Force exceeded its statutory authority by denying

[Plaintiff’s] application after the Board had issued its decision finding relief to be warranted in

part.” Dkt. 21-1 at 27. Plaintiff contends that the statutory requirement that the Secretary “act[]

through boards of civilians” to make corrections, 10 U.S.C. § 1552(a)(1), necessarily “forecloses

the Secretary from adjudicating such corrections himself.” Dkt. 21-1 at 27. This is so, she

reasons, because “[t]he Secretary cannot reasonably be understood to have been ‘acting through’

the Board in correcting the record of [Plaintiff’s] discharge by rejecting the Board’s unanimous

determination that her discharge should be corrected.” Id.

D.C. Circuit precedent forecloses this argument. In Miller v. Lehman, 801 F.2d 492

(D.C. Cir. 1986), the Court of Appeals considered whether the Secretary of the Navy violated

§ 1552 by overruling a records-correction board’s recommendation to expunge a

servicemember’s letter of censure. In analyzing the statutory text, the D.C. Circuit explained that

“the Secretary is by no means a cipher in the process of correcting naval records.” Id. at 497. In

11 the D.C. Circuit’s view, although § 1552(a) “directs the Secretary to act through a civilian

board,” the provision also “leaves no doubt that the final decision is to be made by him: ‘The

Secretary of a military department . . . may correct any military record of that department when

he considers it necessary to correct an error or remove an injustice.’” Id. (quoting 10 U.S.C.

§ 1552(a)) (emphasis added by the D.C. Circuit). The D.C. Circuit also emphasized that the

Secretary appoints the members of the civilian review boards, who serve at the Secretary’s

pleasure. Id. The court thus held that under the statute, the findings of the Board are not binding

on the Secretary. Id.

Plaintiff responds by arguing that Miller is a dead letter. She contends that “the relevant

statutory language has been substantially amended in a way that renders Miller no longer

controlling.” Dkt. 21-1 at 31. The Court is unpersuaded. Although Plaintiff is correct that

§ 1552 has been amended and expanded in the decades since Miller, none of the changes cast

doubt on the D.C. Circuit’s reasoning in that case. As of 1986, § 1552(a) provided:

The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.

10 U.S.C. § 1552(a) (1986). The current version of the statute breaks that language into two

sentences and removes the gendered pronouns:

The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2) [with respect to decisions granting certain favorable corrections], such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.

10 U.S.C. § 1552(a)(1).

12 But in every material respect, the statute is much the same. Notably, the text on which

the D.C. Circuit principally relied—that the Secretary “may correct any military record” in

circumstances when he “considers it necessary to correct an error or remove an injustice”—

remains unchanged. 10 U.S.C. § 1552(a)(1) (emphasis added). The new phrasing of the

statutory text leaves no more doubt than the earlier version about the Secretary’s role as the final

decision-maker. Miller, 801 F.2d at 497. Based on the D.C. Circuit’s reading, the statutory text

as it stands today, every bit as much as the statutory text as it stood back then, unambiguously

permits the Secretary to overrule the Board. 3

Plaintiff’s arguments to the contrary are unavailing. Although Plaintiff emphasizes that

the second sentence of the section in its present form provides that the Secretary “shall” act

through civilian boards, the former version of the statute, without using that exact word, already

“direct[ed] the Secretary to act through a civilian board.” Miller, 801 F.2d at 497. The D.C.

Circuit found the statutory requirement that the Secretary act through civilian boards insufficient

to bind the Secretary to a board’s decisions, and nothing about the addition of the word “shall” to

the rephrased provision alters that conclusion. The Secretary still acts “through” the Board when

he takes the Board’s recommendation but disagrees with it. As Defendants contend, on the D.C.

Circuit’s reading of the statute, § 1552(a)(1) “merely establish[es] a procedural requirement—

3 Because the D.C. Circuit held in Miller that the relevant statutory text unambiguously permits the Secretary to overrule the Board’s recommendations, the Court need not consider whether, if the statute were ambiguous, the Air Force’s interpretation would be subject to deference under Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). See Strickland v. United States, 423 F.3d 1335, 1340 (Fed. Cir. 2005) (deferring to “the consistent, continual construction of § 1552 in the applicable regulations of all four service branches,” all of which “provide authority for the Secretary to override Board decisions upon following prescribed procedures”). 13 undeniably satisfied here—that a board hear the matter and make a recommended decision.”

Dkt. 23 at 13.

Plaintiff’s further argument that the statute “now emphasizes that the Board can make

‘final decision[s],’” Dkt. 21-1 at 31, reads the relevant statutory text out of context. The portion

of the statute that Plaintiff quotes merely states that “[e]ach final decision of a board under this

subsection shall be made available to the public in electronic form on a centralized Internet

website.” 10 U.S.C. § 1552(a)(5). If Congress had intended to amend the statute to override the

D.C. Circuit’s decision in Miller, it would have done so more clearly than by inserting a passing

reference to a “final decision” in a provision requiring the Board to post its decisions online. In

any event, the statute’s reference to the “final decision of a board,” id. (emphasis added), does

not mean that the Board’s recommendation is necessarily the final decision of the agency. The

Board’s recommendation may be the final word of the Board, but nothing in the statute prevents

the Secretary from reviewing that recommendation and issuing the Air Force’s final decision.

Plaintiff’s various other textual arguments also run headlong into Miller’s unequivocal

holding. For instance, Plaintiff contends that § 1552(a)(4) supports her position, because that

provision states that “a correction under this section is final and conclusive on all officers of the

United States,” 10 U.S.C. § 1552(a)(4)(A), and also refers to a board’s authority to “grant a

request for an upgrade,” id. § 1552(a)(4)(B). As an initial matter, neither of these provisions is

inconsistent with the Secretary’s review of the Board’s decisions. The fact that a correction

under § 1552 is final and conclusive says nothing about the process required to make that

correction, and the reference to the Board’s authority to grant “an upgrade” does not necessarily

preclude review of such a determination by the Secretary. But whatever weight the Court might

place on these statutory clues in the first instance, the Court is not writing on a blank slate. And

14 nothing in these oblique references to the board’s authority in § 1552(a)(4) provides a basis for

disregarding the D.C. Circuit’s holding in Miller.

At bottom, the Court cannot depart from the D.C. Circuit’s interpretation of a statute

based on amendments that are largely technical and procedural. To be sure, the reason that

“[t]he principle of stare decisis has special force in respect to statutory interpretation” is that

“Congress remains free to alter what [courts] have done.” Halliburton Co. v. Erica P. John

Fund, Inc., 573 U.S. 258, 274 (2014) (internal quotation marks and citations omitted). At the

same time, however, courts “normally assume[] that, when Congress enacts statutes, it is aware

of relevant judicial precedent.” Merck & Co. v. Reynolds, 559 U.S. 633, 648 (2010). As such,

the Court assumes that when amending § 1552, Congress was aware of the D.C. Circuit’s

holding that the statute permits the Secretary to second-guess the Board. If Congress had

intended to override that statutory interpretation, it would have done more than slightly reword

the relevant statutory text without removing or otherwise qualifying the language on which the

Court of Appeals principally relied. The Court, accordingly, concludes that the Secretary acted

within the bounds of his statutory authority in reversing the Board’s decision.

B. Regulatory Authority

Plaintiff next argues that, even if the statute permits the Secretary to overturn decisions of

the Board, Air Force regulations prohibit the Secretary from overturning the Board’s unanimous

determination in Plaintiff’s case. Dkt. 21-1 at 32. Under Air Force regulations, “[t]he Board acts

for the Secretary of the Air Force and its decision is final” in certain circumstances, whereas

“[t]he Board sends the record of proceedings on all other applications to the Secretary of the Air

Force or his or her designee for final decision.” 32 C.F.R. § 865.4(l). As relevant here, the

Board acts for the Secretary and renders a “final decision” when it “[g]rants any application in

15 whole or in part,” so long as the relief granted (1) “was recommended by the official preparing

the advisory opinion,” (2) “was unanimously agreed to by the panel,” (3) “does not affect an

appointment or promotion requiring confirmation by the Senate,” and (4) “does not affect a

matter for which the Secretary of the Air Force or his or her delegee has withheld decision

authority or required notification before final decision.” Id. § 865.4(l)(2).

Plaintiff argues, and Defendants do not contest, that the Board granted Plaintiff’s

application in part, that the psychiatric advisor recommended that relief, 4 that the panel’s

decision was unanimous, and that upgrading Plaintiff’s discharge does not require any action

from the Senate. Dkt. 21-1 at 32–33; see also Dkt. 23 at 17–19. The parties thus focus their

arguments on the final qualifier—whether “the relief . . . affect[s] a matter for which the

Secretary of the Air Force or his or her delegee has withheld decision authority or required

notification before final decision.” 32 C.F.R. § 865(l)(2).

Defendants do not argue that the Secretary has explicitly “withheld decision authority”

from the Board over any specific class of matters that relate to the relief granted to Plaintiff.

Rather, they argue that by delegating his authority to review Board decisions to his subordinates,

the Secretary implicitly withheld that authority from the Board. Defendants rely on

Headquarters Air Force Mission Directive 1-24, in which the Secretary delegated to the Assistant

Secretary of the Air Force for Manpower and Reserve Affairs authority to make a final decision

4 Although the psychiatric advisor recommended granting relief, JAJM recommended denying Plaintiff’s application. The regulatory text is unclear as to whether the JAJM recommendation constitutes a separate “advisory opinion” and, if so, whether one supporting advisory opinion is enough to permit the Board to act for the Secretary and to render a final decision, or whether all advisory opinions must unanimously recommend granting relief. In any event, Defendants do not contest that granting relief “was recommended by the official preparing the advisory opinion,” id. § 865.4(l)(2), so they have waived any argument they may have had based on that qualification in the regulation. 16 on all Board decisions, except those related to security clearances or confidential information or

related to other matters “with respect to which the Secretary of the Air Force has reserved final

decision authority.” Dkt. 23 at 18. That Directive also prohibits the Assistant Secretary from

further delegating the authority “to deny an application for correction of military records when

correction has been recommended by unanimous or majority vote of a panel of the Board.” Id. at

18–19. And Defendants also cite the 2017 memorandum from the Acting Secretary that

“temporarily delegated to the Principal Deputy Assistant Secretary of the Air Force for

Manpower and Reserve Affairs . . . [a]uthority to make a final decision on all applications to the”

Board under § 1552, again with the exception of cases involving classified information, security

clearances, or other matters as to which the Secretary reserved final decisional authority. Dkt.

29-1 at 7. The delegation memorandum emphasized that the temporary delegation “includes

authority to grant or deny an application when the opposite action has been recommended by a

unanimous vote of a panel of the Board for Correction of Military Records.” Id. Defendants

argue that, through these delegations, “the Secretary has implicitly withheld [] decisional

authority [from the Board], and then parceled it back in subordinate layers of authority.” Dkt. 26

at 11–12.

By focusing on whether the Secretary has “withheld decision authority” within the

meaning of the regulation, the parties’ arguments about how to interpret 32 C.F.R. § 865(l)(2)

miss a potentially significant constitutional problem with Plaintiff’s preferred reading. (In

fairness to the parties, the Supreme Court case that tees up that constitutional question was

decided only recently, after the parties had finished briefing the pending motions.) Plaintiff

contends that the regulation grants the Board unreviewable discretion, in many cases, to exercise

the Secretary’s statutory power to correct military records. But a delegation of unreviewable

17 authority to the inferior officers that make up the Board would likely offend the Appointments

Clause of the Constitution.

Under the Appointments Clause, the government’s principal officers must be appointed

by the President with the advice and consent of the Senate, while inferior officers may be

appointed by the President alone, the head of an executive department, or a court. U.S. Const.

Art. II, § 2, cl. 2. Air Force regulations provide that the members of the Board “are appointed

and serve at the pleasure of the Secretary of the Air Force,” 32 C.F.R. § 865.1, and thus, to the

extent they exercise significant governmental authority, see Buckley v. Valeo, 424 U.S. 1, 126 &

n.162 (1976), they must serve as inferior officers, see Edmond v. United States, 520 U.S. 651,

660–62 (1997). In a recent decision, the Supreme Court held that Administrative Patent Judges

sitting on the Patent Trial and Appeal Board, who were appointed to serve as inferior officers,

may not render unreviewable final decisions in patent disputes. United States v. Arthrex, Inc.,

141 S. Ct. 1970, 1981 (2021). Rather, the Court explained, “[o]nly an officer properly appointed

to a principal office may issue a final decision binding the Executive Branch” in such

proceedings. Id. at 1985. 5 But, if Plaintiffs are correct about the regulatory scheme, the inferior

officers on the Board could bind the Executive Branch to “correct an error or remove an

injustice” in a military record, 10 U.S.C. § 1552(a)(1), without any oversight from the Secretary

5 The patent judges at issue in Arthrex were removable only “for such cause as will promote the efficiency of the service.” 141 S. Ct. at 1982 (quoting 5 U.S.C. § 7513(a)). And the Supreme Court observed that circumstances in which inferior officers “serve at the pleasure of the appointing department head” were “potentially distinguishable.” Id. at 1984. But when it came to crafting a remedy, the Court struck down the portion of the statute precluding review of the patent judges’ decisions, rather than the provision providing those judges with removal protection. Id. at 1987 (plurality opinion); id. at 1997 (Breyer, J., concurring in the judgment in part and dissenting in part). The decision thus casts constitutional doubt on any statutory scheme that grants unreviewable authority to inferior officers, regardless of how easily those inferior officers can be removed.

18 or any other principal officer. Although unique considerations might apply in this context,

Arthrex at least suggests that such an arrangement would be unconstitutional. 6

It might be possible to adopt a construction of the regulation that would avoid this serious

constitutional concern. Although § 865.4(l) states that the Board “acts for the Secretary of the

Air Force and its decision is final” in certain circumstances, the following section, § 865.5,

provides that “[t]he Secretary may direct such action as he or she deems appropriate on each

case, including returning the case to the Board for further consideration,” 32 C.F.R. § 865.5(a)

(emphasis added). The regulations do not explain whether the broad grant of authority to the

Secretary in § 865.5 is cabined by the specific limitations on the Secretary’s review power in

§ 865.4, or whether it’s the other way around. Broadly speaking, an “ancient interpretive

principle” dictates that “the specific governs the general (generalia specialibus non derogant).”

Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17, 21 (2012); see also Ex parte Crow Dog, 109

U.S. 556, 570 (1883). Applying that canon here, the specific delegation of the Secretary’s power

to the Board in § 865.4(l) could potentially be construed to trump the general reference to the

Secretary’s power of review in § 865.5(a). On that reading, the Secretary may reverse the

Board’s decision or remand to the Board for further consideration under § 865.5(a) only in those

cases that are subject to his review under § 865.4(l).

But one might also read § 865.4(l) as simply setting a default procedure that the Secretary

is free to override as he sees fit in a given case. By default, the Board’s decision is the final

action of the agency in many cases, including most denials or unanimous grants, whereas other

cases go on to the Secretary for final decision. But in “each case,” regardless of which category

6 An internal agency delegation, no less than a statute, can offend the Appointments Clause. See Lucia v. SEC, 138 S. Ct. 2044, 2049, 2051 (2018). 19 that case falls into, “[t]he Secretary may direct such action as he or see deems appropriate.” 32

C.F.R. § 865.5(a). That reading would be consistent with the usual rule that an agency head’s

delegation of her authority to subordinates is premised, at least in part, on the delegating official

maintaining the power to review the decisions of the delegee, such that the ultimate

responsibility for the final decision remains with the delegating official. See Arthrex, 141 S. Ct.

at 1984 (“[I]t certainly is the norm for principal officers to have the capacity to review decisions

made by inferior adjudicative officers.” (internal quotation marks and citation omitted)); see also

39 Op. Atty. Gen. 541, 546 (1933) (“The theory underlying the vesting in an executive officer of

numerous duties, varying in importance, is not that he will personally perform all of them, but

rather that he will see to it that they are performed, the responsibility being his and he being

chargeable with the result.”). And adopting this interpretation of the regulation would also avoid

the constitutional questions that Plaintiff’s contrary reading raises, by making each decision of

the inferior officers on the Board subject to the discretionary review of a principal officer.

The only problem is that the parties have not briefed the possible Appointments Clause

problem with Plaintiff’s interpretation of § 865.4(l), and Defendants do not seek summary

judgment on that basis. And the Court is hesitant to rule based on an argument that neither party

has addressed. The Court will, accordingly, deny the parties’ cross-motions with respect to the

regulatory issue without prejudice and will permit the parties to renew their motions for

summary judgment. In their renewed motions, the parties should address the implications their

respective positions under the Appointments Clause. 7

7 The Secretary’s most recent delegation of the authority to review Board decisions might have its own problems. As the D.C. Circuit has held (and as explained above), § 1552 “leaves no doubt that the final decision is to be made by” the Secretary. Miller, 801 F.2d at 497. In other words, reviewing Board decisions is among the Secretary’s powers. The Secretary is statutorily authorized to “assign such of his functions, powers, and duties as he considers appropriate to the 20 C. Arbitrary and Capricious

Because the Court lacks sufficient information to resolve Plaintiff’s regulatory challenge,

it would be premature for the Court to consider whether the reversal decision was arbitrary and

capricious. For the same reason, the Court will deny Plaintiff’s motion to correct the

administrative record without prejudice. That motion will be ripe for decision only if the Court

determines that the Acting Assistant Secretary had authority to review the Board’s decision.

Only then would the Court proceed to the question whether the Acting Assistant Secretary’s

decision was arbitrary and capricious.

Before moving on, however, the Court will make one final observation about the merits

to help guide the parties in further litigating this case. In their briefing, the parties disagree about

Under Secretary of the Air Force and to the Assistant Secretaries of the Air Force.” 10 U.S.C. § 9013(f). As a general matter, “[w]hen a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible.” U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004); see also United States v. Giordano, 416 U.S. 505, 514 (1974) (describing as “unexceptionable” the “general proposition” that an agency head may delegate authority to a subordinate of her choosing); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 122 (1947). But where a statute “specifically limit[s]” to whom an agency head may delegate authority, Giordano, 416 U.S. at 514, that “affirmative evidence of a contrary congressional intent” prevails over the usual rule, U.S. Telecom Ass’n, 359 F.3d at 565; Stand Up for California! v. U.S. Dep’t of the Interior, 994 F.3d 616, 622–23 (D.C. Cir. 2021); see also 9 Op. O.L.C. 94, 94 (1985). Here, the Acting Secretary purported to temporarily delegate the authority to review Board decisions to the Principal Deputy Assistant Secretary of the Air Force for Manpower and Reserve Affairs. One might interpret the statute permitting the Secretary to delegate her authority to an Assistant Secretary as implying that the Secretary cannot delegate her authority directly to a Principal Deputy Assistant Secretary. See 10 U.S.C. § 9013(f). But the D.C. Circuit has cautioned against reasoning by negative implication in the context of delegations. As the Court of Appeals has explained, the expressio unius canon “is often misused” and “carries even less weight in the redelegation context, where the statute or regulation may mention a specific official only to make it clear that this official has a particular power rather than to exclude delegation to other officials.” Stand Up for California!, 994 F.3d at 624 (internal quotation marks and citations omitted). In any event, Plaintiff has not raised any objection to the validity of the Acting Secretary’s delegation to the Principal Deputy Assistant Secretary, and, accordingly, the Court need not—and will not— resolve that question on the present record. 21 how deferential the Court’s review of the Secretary’s decision should be. In this regard, the D.C.

Circuit’s recent per curiam decision in McKinney v. Wormuth, No. 20-5189, 2021 WL 3043284

(D.C. Cir. July 20, 2021), provides helpful guidance.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Plaintiff’s motion for summary

judgment, Dkt. 21, is DENIED. The motion is DENIED with prejudice as to the statutory

question but is DENIED without prejudice in all other respects. It is further ORDERED that

Defendants’ motion for summary judgment, Dkt. 23, is GRANTED in part and DENIED in

part. The motion is GRANTED with respect to Plaintiff’s claim that the Secretary lacks

statutory authority to reverse the Board but is DENIED without prejudice in all other respects.

And it is further ORDERED that Plaintiff’s motion to correct the administrative record, Dkt. 30,

is DENIED without prejudice as premature. Plaintiff may renew that motion if and when she

renews her motion for summary judgment on the merits. The parties shall file a joint status

report on or before August 6, 2021, proposing next steps in this litigation, including a briefing

schedule for renewed motions for summary judgment, if appropriate.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: July 26, 2021