Ey v. John McHugh

Citations: 21 F. Supp. 3d 49; 2014 U.S. Dist. LEXIS 25884Docket: Civil Action No. 2012-0862

Court: District Court, District of Columbia; February 28, 2014; Federal District Court

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Carl S. Ey, a Lieutenant Colonel in the Army, was diagnosed with anxiety and depression in October 2009, shortly before being notified of a transfer to a new duty station 1500 miles away. To avoid the move and continue his treatment, Ey initially requested retirement effective six months later. However, he later sought to remain on active duty until August 2011, but the Army did not guarantee him a promotion. Ultimately, Ey decided to retire but later contested this decision, claiming he was improperly forced to choose between relocation and retirement. He sought reinstatement from the Army Board for Correction of Military Records (ABCMR), which declined his request, leading to this lawsuit. Ey argues that the ABCMR’s decision was arbitrary, capricious, and contrary to law, seeking reinstatement to active duty and consideration for promotion. The Court, however, upheld the ABCMR’s ruling, emphasizing the deference owed to military administrative decisions, and granted the Defendant's Motion for Summary Judgment while denying Ey's motion. Ey had a distinguished 19-year Army career, but his diagnosis and subsequent reassignment led to his retirement request, which he submitted shortly before the deadline, acknowledging that it could not be withdrawn. Despite recommendations from his healthcare provider for continued treatment at his current duty station, the Army approved his retirement effective May 31, 2010.

On March 1, 2010, the Plaintiff requested a delay in his approved retirement to complete medical treatment, which the Army initially denied. After his healthcare provider recommended an additional 90-day stay in Washington, the Army granted a new retirement date of August 31, 2010. Army promotion policies dictate that officers within 90 days of retirement are ineligible for promotion, as outlined in Army Regulation 600-8-29. The 2010 Colonel Promotion Board, meeting in June 2010, would not consider the Plaintiff for promotion due to his retirement timeline. Following a scheduled foot surgery on June 3, 2010, and a recommendation to remain active duty during recovery, the Plaintiff requested to extend his retirement to August 31, 2011. Although his branch manager indicated that this would make him eligible for promotion, the board met before any change to his retirement date could be made.

On July 21, 2010, the Army approved his request for a one-year delay but required a new retirement application. The Plaintiff insisted that without a Special Selection Board (SSB) review, he would proceed with his original retirement date. He felt he faced a dilemma between transferring, which would interrupt his medical treatment, and retiring, thus missing potential promotion and associated financial benefits. After his retirement on August 31, 2010, at the rank of Lieutenant Colonel, he filed a claim with the Army Board for Correction of Military Records (ABCMR) to be reinstated and considered for promotion by an SSB. The ABCMR denied his petition, stating his retirement decision was voluntary and that regulations did not allow retirement revocation in such circumstances. His subsequent request for reconsideration was also denied.

In May 2012, the Plaintiff filed a lawsuit asserting that his retirement was improper. Following a request from the Defendant, the Court remanded the case to the Army Board for Correction of Military Records (ABCMR) in December 2012, directing it to evaluate whether Army regulations and the Plaintiff’s temporary profiles affected his reassignment eligibility during his transfer on November 17, 2009. The ABCMR determined that the temporary profiles did not impact his reassignment eligibility, concluding that the Plaintiff was not improperly forced to retire and was therefore not entitled to a Special Selection Board (SSB). The Plaintiff contests this finding, claiming it was arbitrary, capricious, and legally erroneous, seeking to have his retirement declared void, reinstatement to active duty as a Lieutenant Colonel, and consideration for a promotion in 2010.

The Defendant filed a Motion to Dismiss based on the argument that the Plaintiff's claims are moot, referencing Federal Rule of Civil Procedure 12(b)(1) which requires the Plaintiff to demonstrate that the Court possesses subject-matter jurisdiction. The Court must verify its jurisdictional authority and is permitted to consider documents beyond the pleadings for this determination. The Plaintiff invokes the Administrative Procedure Act (APA) to challenge the ABCMR’s decision, while the Defendant also seeks summary judgment as an alternative to its mootness claim. Under the APA, summary judgment is applicable for reviewing the agency's decision, focusing on whether the administrative record supports the agency's conclusion rather than applying the typical summary judgment standards. The Court's role is to assess the evidence in the administrative record to determine if it justifies the agency's decision in accordance with the APA.

The Administrative Procedure Act (APA) outlines judicial authority to review executive agency actions for procedural correctness. Courts must set aside agency actions deemed arbitrary, capricious, or not in accordance with the law, relying on a narrow standard that encourages deference to agency expertise. Agencies are required to examine relevant data and provide satisfactory explanations that connect facts to their decisions. A lack of evidence or an improper understanding of the law can constitute an abuse of discretion. Courts cannot substitute their judgment for that of the agency nor disturb decisions supported by a rational connection between the facts and choices made. An agency's decision may still be upheld if its reasoning can be reasonably inferred.

Particular deference is applied to military personnel decisions due to courts' limited capacity to evaluate such matters and the risk of destabilizing military command. The Army Board for Correction of Military Records (ABCMR) operates under a statute granting significant discretion to the Secretary of the Army, leading to a heightened deference in judicial reviews. While federal courts review ABCMR decisions based on APA standards, they face a higher threshold to establish that the Secretary acted arbitrarily when authorized to correct errors or injustices. Courts confirm that the ABCMR has examined relevant data and provided satisfactory reasoning for its actions but focus on the adequacy of the decision-making process rather than the correctness of the decision itself.

Ey contends that the Army Board for Correction of Military Records (ABCMR) acted arbitrarily in denying his request for reinstatement as a Lieutenant Colonel and for consideration by a 2010 promotion board. The case hinges on the determination of whether Ey's resignation was voluntary. Initially, the Army claims the matter is moot, asserting that since Ey was allowed to withdraw his retirement request and continue active duty until at least 2011, he no longer has a legally cognizable interest in the outcome. The Army cites precedent indicating that corrective actions by an agency can render a case moot. However, Ey's claim remains valid because the Army did not fulfill all his requests, specifically denying him the opportunity to be considered for the 2010 promotion board. 

The Army later argues that Ey would have qualified for consideration by a Special Selection Board (SSB) if he had chosen not to retire, but the regulations do not guarantee such consideration without a prior improper denial, which the Army denies occurred. The Army maintains that Ey was ineligible for consideration by the 2010 board due to his proximity to retirement. Consequently, the Court concludes that Ey's case is not moot and will proceed to evaluate his substantive claim that the ABCMR's refusal to reinstate him and allow promotion consideration was arbitrary and capricious. Ey asserts that his retirement was involuntary based on two main points: (1) he was compelled to accept reassignment or retire despite a medical profile that should have protected him, and (2) the Army misrepresented key facts leading to his retirement decision.

Plaintiff argues that his temporary profiles due to anxiety and depression should have prevented his reassignment from the Army. He cites an Army regulation and an internal policy memorandum, claiming they prohibit transferring soldiers with a T-3 profile, which he asserts he had at retirement. The ABCMR, however, found this argument unmeritorious, concluding that Plaintiff’s temporary profiles did not limit his reassignability. The Board assessed the first two temporary profiles, noting that while the November 2009 profile restricted his ability to take the Army Physical Fitness Test, it did not impose assignment limitations. The applicable section regarding reassignment was left blank. The second profile, dated December 13, 2009, limited deployment eligibility but made no mention of transfer to a domestic duty station. The Board dismissed a third profile submitted by Plaintiff’s psychiatrist after his retirement request, stating that it was irrelevant since it was presented after his irrevocable retirement request was made.

The Board examined Army Regulation 600-8-101 and the Surgeon General’s Policy Memorandum 09-061 to determine their impact on reassignment with a temporary profile. It found that Regulation 600-8-101 does not address reassignment for soldiers with temporary profiles, focusing instead on processing procedures for those arriving at or leaving a duty station. The language cited by Plaintiff was derived from an Army pamphlet, not the regulation itself. Additionally, the Surgeon General’s Memorandum applies solely to MEDCOM Regional Medical Center commanders and does not pertain to Plaintiff’s case, as his doctors were not MEDCOM officers. The memorandum allows for requests related to soldier stabilization but reinforces that ultimate authority for assignments lies with the Army Human Resources Command, not medical facility commanders.

The Board determined that the reassignment of soldiers on temporary profiles is permissible under applicable regulations, and since the Human Resources Command made the final decision about the Plaintiff’s assignment, the Board deemed this decision valid. The Court found no basis to label the ABCMR’s conclusion as arbitrary or capricious, given the deference owed to military decisions.

To succeed in his claim, the Plaintiff must demonstrate that his retirement was involuntary due to other factors. He argued that he was improperly forced to choose between retirement and reassignment, asserting he should have had the option to delay retirement due to his medical condition. However, the ABCMR clarified that at the time of his retirement decision, his temporary profile did not affect his reassignment eligibility, leaving him with only the options of PCS or retirement. The Army’s communications about his choices were accurate, as his temporary profile did not impose restrictions relevant to his decision. The ABCMR noted that the updated profile, which would have allowed for a delay, was not communicated until after his retirement decision.

Additionally, the Plaintiff claimed that the ABCMR acted irrationally by concluding he was not eligible for a Special Selection Board (SSB) consideration. The Court upheld the ABCMR’s findings, which were based on the premise that the Army could reassign him, making his retirement voluntary. The Plaintiff argued that the ABCMR misapplied the standard for determining his eligibility for an SSB due to an 'administrative error,' but the Board found no such error in the Army's actions. The Court noted that despite a potential misapplication of terminology, the ABCMR's conclusion remained valid, as there was no evidence of error preventing the Army from considering him for promotion.

Ultimately, the Plaintiff did not demonstrate procedural flaws in the ABCMR’s review, which led the Court to grant the Defendant’s Motion for Summary Judgment and deny the Plaintiff’s. An order consistent with this opinion will be issued.