UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRED C. GALVIN, Plaintiff, v. Civil Action No. 21-1813 (JDB)

CARLOS DEL TORO, Secretary of the Navy, et al., Defendants.

MEMORANDUM OPINION

Plaintiff Fred C. Galvin spent over two decades in the United States Marine Corps, during

which time he “accumulated a stellar service record.” Pl.’s Mem. of P. & A. in Opp’n to Def.’s

Mot. for Summ. J. & in Supp. of Pl.’s Cross-Mot. for Summ. J. [ECF No. 23] (“Pl.’s Mot.”) at 1;

see also Galvin v. Del Toro,

, 7–8 (D.D.C. 2022) (describing the factual

background of this case). But his stellar record was blemished: until recently, Galvin’s official

military file included two adverse fitness reports, and Galvin was passed over for promotion

numerous times. See Compl. [ECF No. 1] at ¶¶ 19, 31–32. Following a review and withdrawal

of the adverse fitness reports, the Navy convened a special selection board (“SSB”) to evaluate his

candidacy for promotion in light of the corrected record.

¶¶ 34–40. But even on the corrected

record, the SSB did not recommend Galvin for promotion. Id. ¶ 49. Galvin seeks a review of the

SSB’s decision, arguing that it was arbitrary and capricious. For the reasons set forth below, the

Court concludes that the SSB’s decision survives review and will grant summary judgment to

defendants.

1 I. BACKGROUND

A. Statutory Background

Eligible candidates for promotion in the military are evaluated by “selection boards.” See

(a). These selection boards consider, among other things, candidates’ “official

military personnel file,”

§ 615(a)(2)(A), and “recommend for promotion to the next higher

grade those officers . . . whom the board . . . considers best qualified for promotion,” id. § 616(a);

see also id. § 616(c)(3) (“A selection board . . . may not recommend an officer for promotion

unless . . . a majority of the members of the board . . . finds that the officer is among the officers

best qualified for promotion to meet the needs of the armed force . . . .”).

Normally, the Secretary of the relevant military department convenes a selection board

“[w]henever the needs of the service require.”

(a). However, the statutory scheme

provides for “special selection boards” outside the normal course under certain circumstances.

Relevant here, where the Secretary “determines . . . that there was material unfairness” in a

candidate’s initial consideration by a selection board, “the Secretary may convene a special

selection board” to determine whether the candidate “should be recommended for promotion.”

§ 628(b)(1).

The SSB then considers “the record of the person whose name was referred to it for

consideration as that record, if corrected, would have appeared to the board that [previously]

considered him,” with the document(s) that created material unfairness removed.

(b)(2). The SSB compares that record with “the records of a sampling of those officers of

the same competitive category who were recommended for promotion, and those officers who

were not recommended for promotion, by the board that [previously] considered him.”

Upon reaching a decision as to its promotion recommendation, every selection board—

whether an SSB or not—must submit a written report that follows a statutorily defined procedure.

2 SSBs must “submit to the Secretary of the military department concerned a written report, signed

by each member of the board, containing the name of each person it recommends for promotion

and certifying that the board has carefully considered the record of each person whose name was

referred to it.”

(c)(1).

Courts may “review the action of a special selection board convened under this section”

and “set aside the action only if the court finds that the 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.”

(g)(2). Otherwise, no

court “may, with respect to a claim based on any extent of the failure of a person to be selected for

promotion by a promotion board . . . except as provided in subsection (g), grant any relief on the

claim.”

§ 628(h).

Congress also prohibited the disclosure of “[t]he proceedings of a selection board,”

including SSBs. 10 U.S.C. § 613a(a). It further determined that “[t]he discussions and

deliberations of a selection board . . . and any written or documentary record of such discussions

and deliberations” may not be “used for any purpose in any action, suit or judicial or administrative

proceeding without the consent of the Secretary of the military department concerned” including

being “admitted as evidence.” Id. § 613a(b).

B. Factual Background 1

Plaintiff Fred Galvin is a retired Marine Corps major. See Defs.’ Mem. of P. & A. in Supp.

of Defs.’ Mot. for Summ. J. [ECF No. 21-1] (“Defs.’ Mot.”) at 6. Following a decorated career,

he was eligible for promotion from major to lieutenant colonel several times. Id. Four selection

1 These facts are largely taken from the government’s motion for summary judgment. Galvin “does not contest” the relevant facts in the government’s motion. Pl.’s Mot at 2. A more fulsome discussion of the underlying facts can be found in Galvin, 586 F. Supp. 3d at 7–8.

3 boards were convened to consider him for promotion, and four times he was passed over. Id. at 6

& n.9. The record before those boards included an “adverse fitness report,” 2 which criticized

Galvin for his actions in overseas combat during a “firefight following an ambush and also because

some Marines under his command had undertaken a mission in a restricted area.” Id. at 6. Galvin

eventually retired in 2014. Compl. ¶ 33.

In 2018, following a review of the facts underlying the adverse fitness report, a Marine

Corps “court of inquiry” exonerated Galvin of any wrongdoing and the Marine Corps Board for

Correction of Naval Records (“BCNR”) removed the adverse fitness report from his file. Defs.’

Mot. at 6–7. The BCNR also recommended that an SSB be convened to consider Galvin for

promotion. Id. at 7. The SSB would “reconsider Major Galvin’s promotion based on his record

as it appeared before the Fiscal Year 2012 Lieutenant Colonel Promotion Selection Board.” Id.

The Assistant Secretary of the Navy for Manpower and Reserve Affairs accepted that

recommendation and convened an SSB. Id. The record before the SSB did not include the adverse

fitness report, and the SSB nonetheless did not recommend Galvin for promotion. Id.

In explaining its decision, pursuant to

(c)(1), the SSB submitted to the

Secretary a report certifying that Galvin was “in the opinion of the majority of the members of the

board . . . not comparable to those officers who were selected for promotion before the [previous

board to consider him].” Administrative Record (“AR”) 46. 3

C. Procedural History

Galvin filed a complaint on July 7, 2021, alleging violations of

and the

Administrative Procedure Act (“APA”),

. See Compl. In September 2021,

2 The second adverse fitness report was issued after the period considered by the special selection board in this case. Defs.’ Mot. at 6 n.9. 3 Relevant sections of the administrative record are found in the Joint Appendix [ECF No. 29].

4 defendants moved to dismiss Galvin’s APA claim, arguing that § 628 prevents Galvin from

seeking relief under the APA. See Defs.’ Mem. of P. & A. in Supp. of Defs.’ Partial Mot. to

Dismiss [ECF No. 12-1]. This Court granted the partial motion and dismissed Galvin’s APA

claim. See Galvin, 586 F. Supp. 3d at 11–15.

In April 2022, defendants filed a motion for summary judgment on the remaining claim.

See Defs.’ Mot. Galvin filed an opposition and a cross-motion for summary judgment. See Pls.

Mot. 4 Defendants filed a reply in support of their motion and opposition to Galvin’s motion. See

Defs.’ Combined Opp’n to Pl.’s Mot. and Reply in Supp. of Defs.’ Mot. [ECF No. 26] (“Defs.’

Reply”). 5 Finally, Galvin replied in support of his motion, see Pl.’s Reply in Supp. of Pl.’s Mot.

[ECF No. 28], and filed the joint appendix, see Joint Appendix. The cross-motions for summary

judgment are thus ripe for decision.

II. ANALYSIS

A. Standard of Review

In reviewing agency decisions, “the district judge sits as an appellate tribunal,” and the

“‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson,

(D.C. Cir. 2001). “Summary judgment is the proper mechanism for deciding, as a matter of

law, whether an agency action is supported by the administrative record . . . .” Styrene Info. &

Rsch. Ctr., Inc. v. Sebelius,

(D.D.C. 2013) (quoting Loma Linda Univ.

Med. Ctr. v. Sebelius,

(D.D.C. 2010)). “[T]he function of the district court

is to determine whether or not as a matter of law the evidence in the administrative record permitted

4 This document is also docketed as ECF No. 24. 5 This document is also docketed as ECF No. 27.

5 the agency to make the decision it did.” Stuttering Found. of Am. v. Springer,

(D.D.C. 2007) (internal quotation marks omitted).

The parties’ first disagreement concerns the standard of review the Court should apply

when reviewing the SSB’s decision not to recommend Galvin for promotion. As this Court

previously observed, “the substantive standard for review under § 628(g)(2)—‘arbitrary or

capricious; not based on substantial evidence; a result of material error of fact or material

administrative error; or otherwise contrary to law’—is essentially identical to the APA’s

standard.” 6 Galvin, 586 F. Supp. 3d at 13. Given this similarity, Galvin argues that the traditional

APA standard of review—which, he notes, requires sufficient agency explanation—should be

applied here. See Pl.’s Mot. at 6 (“[A]n agency action that lacks explanation is a textbook example

of arbitrary and capricious action.” (quoting Mori v. Navy,

(D.D.C. 2013))).

Galvin argues that the SSB did not provide an adequate explanation for its decision under this

standard and thus it should be set aside as arbitrary and capricious.

Defendants disagree. They contend that “ordinary APA principles that require a certain

degree of elaboration on the agency’s reasoning do not apply here.” Defs.’ Mot. at 8. In support,

they point to two quirks of SSB non-promotion decisions: (1) “Congress has specified the content

of the SSB’s reports recommending the promotion or non-promotion of the officers it considers,”

(citing

(c)(1)), and (2) “Congress has broadly precluded the disclosure of the

SSB’s proceedings, including the ‘discussions and deliberations of a selection board,’”

at 8–9

(quoting 10 U.S.C. § 613a). Given the statutory scheme established by Congress for these types

of decisions, defendants argue, the explanation given by the SSB—the statutorily mandated

6 The APA authorizes courts to set aside agency action found to be, among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “without observance of procedure required by law,” as well as “unsupported by substantial evidence” in certain cases.

.

6 statement that it considered Galvin’s record and a majority of the SSB concluded that he was not

comparable to the officers who were selected for promotion in the relevant year—is sufficient.

at 10–14.

The APA’s requirement “that an agency action [not be] arbitrary and capricious or

otherwise contrary to law[] imposes a general ‘procedural’ requirement of sorts by mandating that

an agency take whatever steps it needs to provide an explanation that will enable the court to

evaluate the agency’s rationale at the time of decision.” Pension Ben. Guar. Corp. v. LTV Corp.,

(1990). In many instances, a fulsome explanation might be required—to

demonstrate, for example, that the agency relied on the factors Congress intended it to, or that it

considered all the evidence before it. See, e.g., Citizens to Pres. Overton Park, Inc. v. Volpe,

(1971) (“[T]he court must consider whether the decision was based on a

consideration of the relevant factors and whether there has been a clear error of judgment.”),

abrogated on other grounds by Califano v. Sanders,

(1977). But even when an agency

“could have explained its reasons for rejecting [the] arguments in more detail,” courts only require

that the “decision minimally contain a rational connection between the facts found and the choice

made.” Frizelle v. Slater,

(D.C. Cir. 1997) (internal quotation marks omitted).

The standard of review under the APA discussed above can vary from case to case.

Relevant here, courts “are obligated to apply [the arbitrary and capricious] standard in an

‘unusually deferential’ manner when reviewing personnel decisions made by the military.” Miller

v. Dep’t of Navy,

(D.C. Cir. 2007) (quoting Cone v. Caldera,

(D.C. Cir. 2000)).

Congress has spoken with unusual specificity about the procedures employed by military

promotional boards, including SSBs. Congress described the action required by the SSB: it must

7 “consider the record of the person whose name was referred to it for consideration as that record,

if corrected, would have appeared to the board that considered him,” and must compare it to “the

records of a sampling of those officers of the same competitive category who were recommended

for promotion, and those officers who were not recommended for promotion, by the board that

considered him.”

(b)(2). And Congress described the SSB’s output: it must submit

a “written report, signed by each member of the board, containing the name of each person it

recommends for promotion and certifying that the board has carefully considered the record of the

person whose name was referred to it.”

§ 628(c)(1). Congress also provided that “[a] court of

the United States may review the action of a special selection board.” Id. § 628(g)(2).

The Court thus must conduct a review, but its review is limited to the action prescribed by

Congress: did the SSB consider an officer’s, such as Galvin’s, record as Congress intended? The

answer can be found, in most instances, in the report from the SSB: if it certifies that it did, in fact,

consider the correct record and compare it to those of contemporaneous officers as mandated by

Congress, then its action was legally sound. The Court is hesitant to conduct any more searching

review—for example, holding that the SSB must explain why each member of the board voted the

way they did, or what factors specifically influenced the members’ voting decisions. Two

principles caution against such an inquiry.

First, as discussed above, courts are unusually deferential to military decisions, and

particularly so with respect to promotion decisions. See, e.g., Kreis v. Sec’y of Air Force,

(D.C. Cir. 1989) (“This court is not competent to compare appellant with other officers

competing for such a promotion.”). “This deferential standard is calculated to ensure that the

courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a

8 result that would destabilize military command and take the judiciary far afield of its area of

competence.” Cone,

.

Second, the Court is hesitant to require more of an SSB than Congress has. See Richey v.

United States,

, 1326–27 (Fed. Cir. 2003) (“The court could not require the SSBs to

meet additional reporting requirements beyond those that were mandated by the statute.” (citing

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,

(1978))). Congress

has expressed a clear desire to have the SSBs work in a particular way: Congress specified the

evidence the SSB should consider (the modified record), how members of the Board should make

their decision (by comparing the record to those of others), and instructed the SSB to show

compliance with those requirements by a simple written report. “[U]nwarranted judicial

examination of perceived procedural shortcomings of [agency action] can do nothing but seriously

interfere with that process prescribed by Congress.” Vt. Yankee Nuclear Power,

.

The prohibitions in 10 U.S.C. § 613a further confirm that Congress did not intend for SSBs

to provide a more fulsome explanation. “The proceedings of a selection board,” including SSBs,

“may not be disclosed to any person . . . except as authorized or required to process the report of

the board.” 10 U.S.C. § 613a(a). Further, the “discussions or deliberations” including “any written

or documentary record” of them “(1) are immune from legal process; (2) may not be admitted as

evidence; and (3) may not be used for any purpose in any action . . . without the consent of the

Secretary of the military department concerned.” Id. § 613a(b).

The government thus argues that 10 U.S.C. § 613a prohibits SSBs from disclosing “reasons

for making the recommendations it does.” Defs.’ Mot. at 13. The Court does not agree that this

provision necessarily prevents the SSB from giving any further information about its decision-

making process. See Richey,

(expressing skepticism that an analogous provision

9 always precludes review). But this provision does confirm that Congress has a specific view on

what, if anything, SSBs can and should disclose about their decision-making. Particularly given

the method of SSB decision-making—a majority vote—it is difficult to imagine how an SSB

would routinely provide a more unified reason for its decision-making without veering

dangerously close to disclosing its internal “discussions or deliberations.” Each voting member

may have weighted the evidence differently, and asking each member to disclose further layers of

reasoning would be difficult (though perhaps not impossible) to do without revealing internal

deliberations or documents. Cf. Miller v. Dep’t of Navy,

, 93 & n.3 (D.D.C.

2009) (noting that under § 613a, the Secretary withheld records memorializing, among other

things, “the results of deliberations of the board[] and selection statistics”).

Galvin cites numerous cases where courts have remanded agency decisions based on

failure to explain under

(g). See Pl.’s Mot. at 5–7. Most of those cases, however,

addressed a different decision: that of the Secretary declining to convene an SSB in the first place.

See, e.g., Mori,

(finding a decision denying plaintiff’s SSB request arbitrary

and capricious as it failed to fully explain its reasoning). 7 That decision is categorically different

from the SSB’s decision about whether to recommend promotion. Congress did not identify the

factors that the agency should consider in the decision to convene an SSB, see

(b)(1) (providing that an SSB may be convened “[i]f the Secretary of the military department

concerned determines . . . that there was material unfairness”), nor the method of reporting the

7 One case cited by Galvin did concern a non-promotion recommendation by an SSB. In Homer v. Roche, the court noted that the SSB gave “no affirmative reason for why plaintiff was not selected for promotion,” stating only that “the selection process is highly competitive.”

(D.D.C. 2002) (internal quotation marks omitted). The Homer court thus observed that it had no way of knowing if the decision was due to an incorrect record, “because there were others more qualified,” or some other reason.

Here, the SSB certified that it considered the amended record and that it determined Galvin’s record was not comparable to those who had been promoted. The Homer court’s reasoning thus has limited applicability here.

10 Secretary’s decision. The decision under § 628(g) to convene an SSB is thus a more traditional

decision-making process that may require elaboration. In contrast, Congress finely crafted the

procedures and relevant considerations for SSBs once they are convened to reconsider a non-

promotion decision. The cases Galvin cites are thus of limited use.

In sum, in the context of SSB non-promotion decisions, a statement from the SSB

certifying that it has conducted the relevant inquiry, “disclos[ing] the factors that were considered,”

Overton Park, 401 U.S. at 420—namely, Galvin’s record as compared to those of others—and

reporting its decision as prescribed by Congress provides the Court with sufficient information to

“evaluate the agency’s rationale at the time of the decision,” Pension Ben. Guar.,

.

This Court thus joins the Richey court and others in this District finding that “the statute imposes

no requirement on the SSBs to provide detailed findings” and an explanation in line with the

statutory requirements is generally sufficient.

; accord Cochrane v. Wynne,

, 271–72 (D.D.C. 2008) (holding that “the SSB complied with all of the

statutory reporting requirements under § 628(c)(1)” by filing a written report); Chambers v. Green,

(D.D.C. 2008) (similar). The SSB here certified that Galvin was,

in the opinion of the majority of the members of the board, not fully qualified or, when compared to the officers whose sample records were considered, is not better qualified for promotion than all of the officers who failed selection for promotion before the FY12 USMC Lieutenant Colonel Promotion Selection Board and is not comparable to those officers who were selected for promotion before the FY12 USMC Lieutenant Colonel Promotion Selection Board.

J.A. [ECF No. 29] (“AR”) at 46. 8 That certification provides sufficient explanation, and thus the

Court concludes that the decision was not on its face arbitrary or capricious.

8 References to the AR will correspond to the internal pagination of the document rather than the PDF pagination.

11 B. Presumption of Regularity

Even with the limited review permitted under the statute, Galvin may still rebut the

“presumption of regularity”—i.e., that the SSB’s decision was not arbitrary or capricious—with

sufficient record evidence. See Richey, 322 F.3d at 1326–27; see United States v. Chem. Found.,

Inc.,

, 14–15 (1926) (“The presumption of regularity supports the official acts of public

officers, and, in the absence of clear evidence to the contrary, courts presume that they have

properly discharged their official duties.”). Galvin claims a number of irregularities in the record

that he believes overcome this presumption.

First, he argues that a comparison of his fitness report scores against those of individuals

who were promoted in the relevant year should “raise[] a red flag.” Pl.’s Mot. at 13. In support,

he attaches the results of two studies compiling statistics about the fitness report scores of military

personnel who were eligible for promotion, see Decl. of Maj. Fred C. Galvin (USMC, Ret.)

(“Galvin Decl.”) [ECF No. 23-1] at 25, 27, noting that his scores are above the mean scores of

those selected for promotion, Pl.’s Mot. at 13.

As an initial matter, these studies are of somewhat limited value. Neither presents any data

on the Fiscal Year (“FY”) 2012 selection board outcomes specifically (those the SSB used for

comparison), and one did not begin collecting data until FY 2013. See Galvin Decl. ¶ 32. But

more importantly, the “court lacks the special expertise needed to review . . . officers’ records and

rank them on the basis of relative merit.” Sargisson v. United States,

(Fed. Cir.

1990); see Kreis,

(noting that courts are “not competent to compare” one officer

“with other officers competing for such a promotion”). Promotion decisions are not based solely

on numbers, and the members of the SSB were under no obligation to assign more weight to the

fitness scores than, say, the fact that Galvin had no “record of combat deployment in his nearly

five years as a major,” Defs.’ Reply at 7. Thus, even if the Court concluded that the score disparity 12 was significant, it could not then infer that the SSB’s decision-making process was therefore

flawed in some way. Put simply, the Court cannot draw any conclusions from the raw data,

particularly when compared only to aggregate data across many years and many selection boards.

See, e.g., Haselrig v. United States,

(2002) (“While statistical data can raise

the question of whether or not SSB procedures may be flawed, the data itself is not dispositive on

the issue.”), aff’d,

(Fed. Cir. 2003).

Galvin also raises numerous complaints about the state of the administrative record. See

Pl.’s Mot. at 11–12. For example, some of the pages have highlighting and marking on them.9

But none of these criticisms offer any reason to believe that the SSB’s process was irregular in any

way. Galvin also notes that there is reference to the media coverage of his attempts to clear his

name regarding the firefight overseas in the administrative record. See AR at 5, 90. However,

those references are in internal routing documents that Galvin does not allege were ever seen or

considered by the SSB. See Defs.’ Reply at 9 n.6 (noting that Galvin’s record—which was

considered by the SSB—appears in the administrative record at AR 219–535). Galvin also takes

issue with the exclusion of certain documents from the administrative record but (particularly in

light of the government’s explanation and subsequent production of the documents) fails to explain

the relevance of any omission to his claim.10 His final qualm with the administrative record is the

language used by the SSB in certifying its report. It is not entirely clear what his objection is, but

the government provides a sufficient explanation of the legal basis of the precise language that the

9 The government submitted a declaration from Steven Milewski, Deputy Director of the Navy’s Administrative Law Division, which “review[s] SSB packages for form and legality.” Defs.’ Reply at 9–10. The declaration explains that the markings on the pages are a typical part of the review process of SSB decisions and indicate harmless actions such as correcting errors and indicating the type of paper to be printed on.

10 According to the government, the documents Galvin complains about were either produced after the Secretary’s action approving the SSB’s report (e.g., the signed approval itself), or never existed. See Defs.’ Reply. at 10–11.

13 SSB used in the report, and absent further explanation of Galvin’s issue with it, the Court does not

see the relevance.

Galvin’s final claim of irregularity is that one member of his SSB “is a U.S. Marine Corps

colonel who has been implicated in unethical conduct in another case.” Pl.’s Mot. at 14. Colonel

Christopher B. Shaw’s conduct, as described in Galvin’s motion and the news coverage Galvin

cites, is certainly concerning. See Pl.’s Mot. at 14–15 (describing Shaw’s threat to a junior defense

counsel: “Our community is small and there are promotion boards and the lawyer on the promotion

board will know you”). But unfortunately for Galvin, it is not particularly relevant to his claim.

He must show through “clear evidence” that there were irregularities in his case. See Chem.

Found., 272 U.S. at 14–15. Galvin fails to connect Colonel Shaw’s misconduct to his SSB and

thus has not given the Court a reason to believe the proceeding here was tainted in any way. See,

e.g., Santini v. Comm’r of Soc. Sec.,

(3d Cir. 2011) (“While we recognize

that certain district courts in this Circuit have questioned [the judge’s] objectivity in other

circumstances, [petitioner] fails to point to any specific evidence of bias here . . . .” (footnote

omitted)). Colonel Shaw’s statement threatening that a member of a promotion board might

retaliate against people unrelated to Galvin’s promotion decision is simply not compelling or

relevant enough to warrant a finding that Galvin’s proceeding was deficient. 11

Given that Galvin has “presented no record evidence to rebut the presumption of regularity,

the court ha[s] no authority to require . . . the SSB[] . . . to provide further explanation.” Richey,

.

11 Moreover, Colonel Shaw’s conduct was occurred and was unearthed after Galvin’s SSB convened. Permitting challenges to administrative decisions issued by a decisionmaker who later is accused of unrelated misconduct would invite numerous baseless challenges and undermine the finality of administrative decisions.

14 III. CONCLUSION

For the foregoing reasons, the Court finds that Galvin has not demonstrated that the SSB’s

action was arbitrary or capricious, not based on substantial evidence, the result of material error of

fact or material administrative error, or otherwise contrary to law, the standard applicable here

under

(g)(2). The Court will accordingly grant defendants’ motion for summary

judgment and deny Galvin’s cross-motion for summary judgment. A separate Order consistent

with this opinion will issue.

/s/ JOHN D. BATES United States District Judge Dated: February 7, 2023

15