The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
RICHARD B. REITER )
) Case No. 3:23-cv-00678
v. )
)
FRANK KENDALL III )
To: Honorable William L. Campbell, Jr., Chief United States District Judge
REPORT AND RECOMMENDATION
Plaintiff Richard B. Reiter (“Plaintiff”) brought this action under the Administrative
Procedures Act (“APA”), 5 U.S.C. § 701, et seq., appealing a final agency decision of the Air
Force Board for Correction of Military Records made on behalf of Defendant Frank Kendall III,
in his official capacity as the Secretary of the Air Force (“Defendant”).
Pending before the Court are competing motions for judgment on the administrative record:
(1) Plaintiff’s motion (Docket No. 24), to which Defendant responded (Docket No. 28) and
Plaintiff replied (Docket No. 31); and (2) Defendant’s motion (Docket No. 26), to which Plaintiff
responded (Docket No. 29) and Defendant replied (Docket No. 30). This matter was referred to
the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) for a Report and Recommendation on these
two motions. (Docket No. 32.)
For the reasons set forth below, the Court recommends that Plaintiff’s motion for judgment
on the administrative record (Docket No. 24) be DENIED and Defendant’s motion for judgment
on the administrative record (Docket No. 26) be GRANTED.
I. REVIEW OF THE RECORD
Plaintiff is an Air Force Reserve Lieutenant Colonel who served as an active-duty Air
Force officer from December 1993 through August 1998, and then served in the Air Force
Reserves from September 1998 until he retired in June 2021. (Docket No. 1 at ¶ 26; Docket No.
16 at ¶ 26.) During that time, Plaintiff served as a Judge Advocate (“JA”) within the U.S. Air Force
Judge Advocate General’s Corps. (Docket No. 1 at ¶ 11; Docket No. 16 at ¶ 11.) In 2016, Plaintiff
was eligible for a promotion to the grade of O-6, or to the rank of Colonel, the process of which
was overseen by the CY 16 Air Force Reserve Line and Nonline Colonel Promotion Selection
Board with Board ID V0616A (the “Promotion Board”).1 (Administrative Record, Docket No. 19-
1 at 22.)2
As part of the promotion process, Plaintiff’s senior rater, Lieutenant General Stayce D.
Harris,3 completed Air Force Form 709, Promotion Recommendation Form (“PRF”) for Plaintiff.
1 Several boards were involved in the underlying events of the litigation. The Court sets
them out here to minimize confusion:
(1) the CY 16 Air Force Reserve Line and Nonline Colonel Promotion Selection Board with
Board ID V0616A, which initially considered Plaintiff for promotion (the “Promotion
Board”);
(2) the Air Force Board for Correction of Military Records, which considered Plaintiff’s
request that his promotion be reconsidered and whose decision is the subject of this
litigation (the “Correction Board” or “AFBCMR”);
(3) the Special Selection Board, which replicates an original promotion board if convened (the
“Special Selection Board”); and
(4) the Air Reserve Personnel Center, Promotion Board, which issued two advisory opinions
on Plaintiff’s request for reconsideration (the “Advisory Board”).
2 When the Court references a page within the Administrative Record, which is located at
Docket No. 19-1, the Court will refer to the corresponding Bates-stamped number(s) in the bottom
right corner of each page. The Bates-stamped numbers are sometimes obscured by the filing footer
but are the same as the page number. The Court will not refer to the PageID number.
3 Lieutenant General Stayce D. Harris is currently the Inspector General of the Air Force,
Office of the Secretary of the Air Force. Most of the underlying events that are relevant to this
litigation took place prior to her promotion when she held the rank of Major General. To minimize
confusion, the Court will refer to her current rank of Lieutenant General.
In a PRF, a senior rater describes the promotion-eligible officer’s key duties, tasks, and
responsibilities; provides a promotion recommendation; provides the size of the group being
considered for a promotion; and selects an overall recommendation, which can be either “definitely
promote,” “promote,” or “do not promote this board.” (AR 15, 16.)
For officers who are designated as “definitely promote,” the senior rater must rank them
within each competitive category. Air Force Instruction 36-2406, Officer & Enlisted Evaluation
Systems, § 8.2.7 (Jan. 2, 2013) [hereinafter AFI 36-2406]. For example, a ranking of “2/5/10”
within a PRF would indicate that there are ten (10) promotion-eligible officers in the competitive
category; that five (5) of those ten officers have been awarded a “definitely promote” designation;
and that the specific officer for whom the PRF is being completed is ranked number two (2) of
those five officers. Id. In other words, this ranking system indicates the officer’s “stratification,”
or ranking relative to other officers who are selected for promotion
Prior to the meeting of the Promotion Board, Plaintiff received a PRF that Lt. Gen. Harris
had completed and signed. This PRF included a stratification of “#1/9 Wing JAs!”; designated
Plaintiff as “definitely promote”; and included a group size of “1/2/4” (the “1/9 PRF”). (AR 15.)
Plaintiff alleges that the 1/9 PRF was mailed to him on or about September 15, 2016. (Docket No.
25 at 7.) The 1/9 PRF was not dated on its face. (AR 15.)
However, the PRF for Plaintiff that the Promotion Board received and reviewed was not
the 1/9 PRF. The PRF the Promotion Board received was also completed and signed by Lt. Gen.
Harris, but it included a stratification of “#2/4 JA DPs [definitely promotes]” (the “2/4 PRF”). (AR
16.) This other PRF designated Plaintiff as “definitely promote” and included a group size of
“2/2/4.” (Id.) In other words, the 2/4 PRF ranked Plaintiff second of the two officers who were
awarded a “definitely promote” designation, whereas the 1/9 PRF ranked Plaintiff first. Just like
the 1/9 PRF, the 2/4 PRF was not dated on its face. (Id.)
The Promotion Board did not select Plaintiff for promotion to the grade of O-6. (Docket
No. 1 at ¶ 29; Docket No. 16 at ¶ 29.) After learning of this decision, Plaintiff reviewed his records
and saw that the PRF that he received and reviewed – the 1/9 PRF – differed from the PRF that
the Promotion Board received and reviewed – the 2/4 PRF. In response to this discovery, Plaintiff
submitted an application to the Air Force Board for Correction of Military Records (the
“Correction Board” or “AFBCMR”) on January 26, 2017 to request that his records be corrected.
(AR 12.) In his application, Plaintiff requested that a Special Selection Board consider the 1/9 PRF
rather than the 2/4 PRF. (Id.)
In response to Plaintiff’s application, the Correction Board sought an advisory opinion
from the Air Reserve Personnel Center, Promotion Board (the “Advisory Board”). An advisory
opinion was issued on December 19, 2017 and recommended that Plaintiff’s request be denied.
(AR 19–21.) The opinion stated, “Without documentation from the senior rater [Lt. Gen. Harris]
to validate the incorrect PRF was submitted, ARPC/PB [Air Reserve Personnel Center/Promotion
Board] must use the PRF submitted by the senior rater.” (Id.) On January 9, 2018, the Correction
Board forwarded the advisory opinion to Plaintiff. (AR 37.) In response, Plaintiff submitted a
rebuttal in which he argued that, given Lt. Gen. Harris’s promotion, it would be a “near
impossibility” to obtain documentation from her to show that she submitted the wrong PRF. (AR
38–41.) He also asserted that the advisory opinion failed to address the fact that he never received
the 2/4 PRF, which, he argued, was a violation of certain applicable Air Force Instructions. (Id.)
On March 19, 2018, taking the advisory opinion and Plaintiff’s rebuttal into consideration,
the Correction Board denied Plaintiff’s application. (AR 4–6.) The Correction Board adopted the
rationale set forth in the advisory opinion and concluded that Plaintiff had not been “the victim of
an error or injustice.” (AR 5–6.) In its denial, the Correction Board stated that it could be willing
to reconsider Plaintiff’s request if he submitted documentation from his senior rater “stating the
incorrect PRF was submitted.” (AR 6.)
Plaintiff submitted a second application to the Correction Board on June 27, 2018. (AR
45–81.) In this new application, he once again requested that a Special Selection Board consider
his record with the 1/9 PRF rather than the 2/4 PRF. (AR 45.) Plaintiff attached a memorandum in
support of his request, which was authored by his attorney. (AR 47–62.) The memorandum
referenced several exhibits, including email correspondence between Lt. Gen. Harris and
Plaintiff’s Wing Commander, Colonel Jeffrey Van Dootingh. (AR 64–68.) In those emails, Col.
Van Dootingh informed Lt. Gen. Harris that the PRF received by Plaintiff (the 1/9 PRF) was
different from the PRF reviewed by the Promotion Board (the 2/4 PRF). (AR 64–66.) He asked
Lt. Gen. Harris if she remembered which PRF she intended to send. (AR 64–66.) She responded:
I was distressed reading your email, though was able to resolve right away that the
correct PRF for [Plaintiff] had him stratified 2/2/4 because I have his signed PRF
and the PRF of the Individual I rated 1/2/4 in my files. I have no idea how he
received what he shares is my signature on the PRF he states he received in the mail
. . . distressing.
(AR 65.)
In response to Plaintiff’s second application, the Correction Board once again sought an
advisory opinion from the Advisory Board. Another advisory opinion was issued on October 2,
2018 and recommended that Plaintiff “be allowed the opportunity to submit a letter to the board
addressing his concerns about the PRF” and that, if he chose to do so, a Special Selection Board
be convened in lieu of the Promotion Board. (AR 19–21.) Plaintiff responded to the advisory
opinion on November 9, 2018. (AR 92–100.) In his response, he argued, through counsel, that the
opinion acknowledged that a “material error and injustice occurred” because Plaintiff was “not
made ‘aware of all documents in his/her officer selection record and [was not] afforded a
reasonable opportunity to submit comments on that information to the promotion board.’” (AR
92.) Plaintiff contended that the suggested remedy was “insufficient” because the 1/9 PRF, which
he maintains is the correct PRF, would not be presented to the Special Selection Board. (AR 93.)
Instead, Plaintiff requested either that the Correction Board promote him to Colonel without
convening a Special Selection Board, or that a Special Selection Board be convened and then
consider his promotion to Colonel using the 1/9 PRF. (Id.)
On January 24, 2019, taking the advisory opinion and Plaintiff’s rebuttal into consideration,
the Correction Board concluded that Plaintiff had, in fact, demonstrated an error or injustice, but
only with respect to a portion of his request. (AR 7–11.) The Correction Board found that the
“incorrect PRF” was mailed to Plaintiff and he was, therefore, denied the opportunity to either
discuss his rating with his senior rater or write a letter to the Promotion Board, which was an error
or injustice. (AR 9.) However, the Correction Board adopted the advisory opinion’s rationale
regarding the remainder of Plaintiff’s request. (Id.) The Correction Board reasoned that it would
be unfair to the other candidates to either directly promote Plaintiff or to “allow him to meet [a
Special Selection Board] with a #1 rating when his Senior Rater signed and sent to the [Promotion]
Board a PRF assigning him a #2 rating, and subsequently reconfirmed his correct stratification was
as her #2 candidate.” (AR 10.) Accordingly, the Correction Board recommended as follows:
The pertinent military records of the Department of the Air Force relating to the
APPLICANT be corrected to ensure he be granted supplemental promotion
consideration to the grade of colonel by a Calendar Year 2016 Air Force Reserve
Participating Line and Nonline Colonel Promotion Selection Board, V0616A,
utilizing the Performance Recommendation Form (PRF) provided by his Senior
Rater for the original V0616 Board, and he be given sufficient opportunity to
provide a letter to the Board President. However, regarding the remainder of the
applicant’s request, the Board recommends the applicant be informed the evidence
did not demonstrate material error or injustice and the application could only be
reconsidered upon receipt of relevant evidence not already considered by the Board.
(Id.)
In line with this decision from the Correction Board, Plaintiff submitted a letter to the
President of the Special Selection Board requesting that his records be evaluated with the 1/9 PRF
in lieu of the 2/4 PRF. (Docket No. 1-5.) According to Plaintiff, the Special Selection Board “did
not select him for promotion, and Plaintiff was forced to retire as a Lieutenant Colonel in 2021.”
(Docket No. 1 at ¶ 45.)
II. PROCEDURAL HISTORY
Following what he states was a “final agency action” by Defendant, Plaintiff commenced
this lawsuit under the APA on July 10, 2023. (Id.) In his complaint, he asserts that the Correction
Board “may correct any military record of the Secretary’s department when the Secretary considers
it necessary to correct an error or remove an injustice.” (Id. at ¶ 9 (quoting 10 U.S.C. § 1552(a)(1)).
He contends, however, that the Correction Board’s January 24, 2019 decision to require the Special
Selection Board to consider the 2/4 PRF, rather than the 1/9 PRF, “constituted an action that is
arbitrary, capricious, an abuse of discretion, and/or not in accordance with the law.” (Id. at ¶ 49.)
In response, Defendant answered Plaintiff’s complaint. (Docket No. 16.)
The Court entered an initial case management order and directed the parties to mediate.
(Docket No. 18 at ¶ F.) The mediation was unsuccessful. (Docket Nos. 20, 21.) Accordingly, to
resolve this dispute, the parties filed cross-motions for judgment on the administrative record for
the Court’s consideration. (Docket Nos. 24, 26.) Those motions have been fully briefed and are
now ready for disposition.
III. LEGAL STANDARD
Challenges to the decisions of military correction boards are reviewable under the APA,
which empowers courts to set aside a final agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Upsher v. U.S. Army,
198 F.3d 248, 1999 WL 1073692, at *1 (6th Cir. Nov. 16, 1999). The Court may review whether
the military correction board complied with its own established rules. Sargisson v. United States,
913 F.2d 918, 921 (Fed. Cir. 1990). Accordingly, an applicant seeking relief from a military
corrections board is bound by the board’s determination unless he can demonstrate that the
determination was arbitrary, capricious, contrary to applicable statutes and regulations, or
unsupported by substantial evidence. Covill v. United States, 959 F.2d 58, 62–63 (6th Cir. 1992);
Baker v. Schlesinger, 523 F.2d 1031, 1035 (6th Cir. 1975).
An agency decision is “arbitrary and capricious” when the agency:
has relied on factors which Congress had not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor
Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). Moreover, “[i]n determining whether an agency action violates the APA, the court must
determine whether the agency conformed with controlling statutes, and whether the agency has
committed a clear error of judgment.” Wilson v. U.S. Air Force, No. 5:08–324–JMH, 2011 WL
310209, at *9 (E.D. Ky. Jan. 28, 2011) (quoting O’Rourke v. Dep’t of the Air Force, No. 3:04-cv-
7228, 2005 WL 3088611, at *3 (N.D. Ohio Nov. 16, 2005)).
The scope of review is narrow, as courts “review a decision of a military corrections board
under an ‘unusually deferential application of the arbitrary and capricious standard.’” Roberts v.
United States, 741 F.3d 152, 158 (D.C. Cir. 2014) (quoting Kreis v. Sec’y of the Air Force, 866
F.2d 1508, 1514 (D.C. Cir. 1989)). This is true in the context of a § 1552 proceeding, such as the
one here. See id.; O’Rourke, 2005 WL 3088611 at *3 (citing Kreis, 866 F.2d at 1514). A plaintiff
must, therefore, overcome “the strong but rebuttable presumption that administrators of the
military, like other public officers, discharge their duties correctly, lawfully, and in good faith.”
Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997).4
However, even under this deferential standard, a plaintiff can establish that the Correction
Board’s decision-making process was arbitrary and in violation of the APA if the Correction Board
failed to consider or respond to arguments made by Plaintiff that are not “frivolous on their face
and could affect the Board’s ultimate disposition.” Id. Although the Correction Board is not
required to consider each of Plaintiff’s arguments on their merits, if it decides not to address such
arguments, it must explain why. Calloway v. Brownlee, 366 F. Supp. 2d 43, 53 (D.D.C. 2005).
In addition, with respect to the substantial evidence standard, the Court’s review “does not
require a reweighing of the evidence, but a determination whether the conclusion being reviewed
is supported by substantial evidence.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir.
1983). Under this standard, the court must ask whether a “reasonable mind might accept a
particular evidentiary record as adequate to support a conclusion.” Visconi v. U.S., No. 3:12–cv–
01012, 2013 WL 2467715, at *8 (M.D. Tenn. Jun. 7, 2013) (quoting Dickinson v. Zurko, 527 U.S.
4 In his response to Defendant’s motion, Plaintiff argues that the Correction Board’s
decision is not entitled to deference because this matter “does not involve ‘a military judgment
requiring military expertise, but rather review of the Board’s application of a procedural
regulation.’” (Docket No. 29 at 14 (quoting Kreis v. Sec’y of the Air Force, 406 F.3d 684, 686
(D.C. Cir. 2005)).) The Court disagrees and finds that a deferential standard is appropriate.
150, 164 (1999)) (internal quotations omitted). “Substantial evidence review ‘gives the agency the
benefit of the doubt, since it requires not the degree of evidence which satisfies the court that the
requisite fact exists, but merely the degree which could satisfy a reasonable factfinder.’” Wilson
Air Center, LLC v. F.A.A., 372 F.3d 807, 813 (6th Cir. 2004) (citations omitted). If an agency’s
decision is supported by substantial evidence, the agency’s “determination must stand regardless
of whether the reviewing court would resolve the issues of fact in dispute differently.” Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993) (citations omitted).
Finally, judicial review of an administrative agency's decision is limited to the
administrative record. Visconi, 2013 WL 2467715 at *8. “[The] focal point for judicial review
should be the administrative record already in existence, not some new record made initially in the
reviewing court.” Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting Camp v.
Pitts, 411 U.S. 138, 142(1973) (internal quotation marks omitted)).
IV. ANALYSIS
This litigation comes down to one issue: whether the Correction Board’s January 24, 2019
decision violated the APA. (AR 9–11.) In that decision, the Correction Board concluded that
Plaintiff presented evidence “sufficient to demonstrate an error or injustice regarding part, but not
all, of his request.” The Correction Board determined that Plaintiff showed that the 1/9 PRF that
he received in the mail was the “incorrect PRF,” and that he was, therefore, denied the opportunity
to discuss his rating with his Senior Rater or write a letter to the Promotion Board. However, the
Correction Board concluded that Plaintiff failed to demonstrate any other injustices. Accordingly,
a Special Selection Board was convened, but it was directed to consider the 2/4 PRF and not the
“incorrect” 1/9 PRF. Plaintiff was to be “given sufficient opportunity to provide a letter” to the
Special Selection Board.
Now, in this lawsuit, Plaintiff asserts that the decision by the Correction Board was both
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and not
supported by “substantial evidence” because the decision required the Special Selection Board to
consider the 2/4 PRF rather than the 1/9 PRF. (Docket No. 1 at ¶ 49.) Plaintiff contends that the
1/9 PRF that he received in the mail was the “correct” PRF, and the 2/4 PRF that the Promotion
Board received was the “incorrect” PRF. He, therefore, asserts the Promotion Board should have
reviewed the “correct” 1/9 PRF and the Correction Board should have directed a Special Selection
Board to consider the “correct” 1/9 PRF. Because this did not happen, Plaintiff asks the Court to:
(1) overturn the Correction Board’s decision; (2) order another Special Selection Board to convene
and consider the 1/9 PRF rather than the 2/4 PRF; and (3) find that the 2/4 PRF is invalid. (Id. at
9.)
In his motion for judgment on the administrative record and supporting memorandum,
Plaintiff argues that the Correction Board’s findings violate the APA because they are not
grounded in law or regulation, are contrary to law, and are not supported by substantial evidence.
(Docket No. 25 at 17–30.)5 He argues that the Correction Board’s decision seeks to protect the
status quo rather than correct an injustice, and that evidence in the record does not support the
finding that the 2/4 PRF is the “correct” PRF.6
5 When citing the parties’ motions, responses, and replies, the Court references the Court’s
own page number rather than the page number provided by the parties.
6 In his response to Defendant’s motion, Plaintiff argues, for the first time, that both the
Correction Board and Defendant “ignored” six arguments that he raised during the underlying
administrative proceeding. (Docket No. 29 at 13.) Accordingly, Plaintiff asks the Court to remand
the matter back to the Correction Board to consider these six arguments. (Id.) The Court finds that
neither the Correction Board nor Defendant “ignored” these arguments. The Court discusses each
argument throughout this Report and Recommendation.
In response, Defendant argues that the Correction Board’s decision did not violate the APA
because it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” (Docket No. 27 at 15–20.) To support this position, Defendant provides
counterarguments to four factual issues that Plaintiff raised in his complaint. (Id.) Defendant also
asserts that the Correction Board’s decision was, indeed, supported by “substantial evidence.” (Id.
at 20–21.)
The Court will examine the parties’ arguments and determine whether the Correction
Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law” and whether it was supported by “substantial evidence.”
A. Whether the Corrections Board’s Decision Was Arbitrary and Capricious
Plaintiff argues that the Corrections Board’s decision violated the APA’s arbitrary and
capricious standard for four main reasons: (1) the decision was “not grounded in law or
regulation”; (2) the decision was “contrary to law” because it refused to “expunge” the 2/4 PRF;
(3) the Correction Board ordered an inadequate remedy; and (4) the Correction Board failed to
obtain evidence. (Docket No. 25 at 18–22, 24–30.)
Defendant, on the other hand, argues that the Correction Board’s decision was not arbitrary
and capricious for four main reasons: (1) the documentation submitted to the Correction Board
indicates that the Promotion Board considered the “correct” PRF; (2) the Correction Board placed
Plaintiff in the same or similar position had he received the “correct” PRF prior to the convening
of the Promotion Board; (3) the timing of underlying events does not establish that the Promotion
Board received the “incorrect” PRF; and (4) both PRFs contain “factually impossible
stratifications.” (Docket No. 27 at 16–20.)
1. Whether the Correction Board’s decision was “grounded in law or regulation”
Plaintiff argues that the Correction Board’s decision was “not grounded in law or
regulation,” and therefore arbitrary and capricious, because the Correction Board incorrectly
presumed that the 2/4 PRF was correct, incorrectly presumed that a certain portion of an Air Force
Instruction did not apply to Plaintiff, and improperly placed the burden of production on Plaintiff.
(Docket No. 25 at 18–22.)
According to Plaintiff, the Correction Board’s conclusion that he received the “incorrect”
PRF means that the Correction Board concluded that the 1/9 PRF was “incorrect” and the 2/4 PRF
was “correct.” Plaintiff argues, however, that there was no evidence in the record to show that the
2/4 PRF was “correct,” aside from the fact that the Promotion Board received the 2/4 PRF and did
not receive the 1/9 PRF. (Docket No. 25 at 18.) Instead, Plaintiff argues that the only way to reach
this conclusion is to begin with the premise that the “correct” PRF is the one that the Promotion
Board received. In response, Defendant argues that there is, indeed, evidence in the record to show
that the Promotion Board considered the “correct” PRF, including “email traffic” between Lt. Gen.
Harris and Col. Van Dootingh, in which the former stated that the “correct” PRF was the 2/4 PRF.
(AR 65 (“[T]he correct PRF for [Plaintiff] had him stratified 2/2/4 because I have his signed PRF
and the PRF of the Individual I rated 1/2/4 in my files.”).)
In addition, Plaintiff argues that the Correction Board wrongly placed the burden of
production on him to rebut the presumption that the 2/4 PRF is the “correct” PRF. (Docket No. 25
at 19–22.) He argues that case law, statutes and regulations, and the need to “protect service
members from error or injustice” all support his position. In particular, he points to a holding from
Buchanan v. U.S., 621 F.2d 373 (Ct. Cl. 1980), to bolster his argument that the Correction Board
improperly placed the burden on him. (Id. at 19) (“The Court held the burden on a servicemember
‘would be almost impossible if the correction board were permitted … to cast aside the issues
without discussion or reason and merely state that insufficient evidence has been presented to
indicate probable injustice or material error.’”) (quoting Buchanan, 621 F.2d at 383).) In response,
Defendant asserts that the Correction Board is not an investigative body, and applicable Air Force
Instructions explicitly place the burden of “providing evidence of an error or injustice” on Plaintiff.
(Docket No. 28 at 6–7.)
All of these arguments from Plaintiff center around one issue: did the Correction Board
make an arbitrary and capricious decision when it concluded that Plaintiff was mailed the
“incorrect” PRF? (AR 9.) The Court must therefore determine whether Plaintiff has demonstrated
that the Correction Board’s decision “had no rational basis or … involved a clear and prejudicial
violation of applicable statutes or regulations” and consequently was arbitrary and capricious, or
whether there is “any evidence” to support the Correction Board’s decision and consequently was
not arbitrary and capricious. Kroger Co. v. Regional Airport Auth. of Louisville & Jefferson
County, 286 F.3d 382, 389 (6th Cir. 2002) (citations omitted). Here, based on the record, the
parties’ arguments, and the “unusually deferential application of the ‘arbitrary and capricious’
standard,” O’Rourke, 2005 WL 3088611 at *3, the Court finds that the Correction Board’s
conclusion that Plaintiff “was mailed the incorrect PRF” was not arbitrary and capricious. (AR 9.)
During his appeal, Plaintiff was provided with the opportunity to submit evidence to
support his position that the 1/9 PRF was the “correct” PRF that the Promotion Board should have
considered. In its March 2018 decision, the Correction Board stated that it “must accept the PRF
submitted by [Plaintiff’s] senior rater as the official document” and that Plaintiff “did not provide
any documentation from his unit or his senior rater indicating the PRF submitted to the Board was
incorrect.” (AR 5.) However, the Correction Board was willing to reconsider Plaintiff’s request
should he “provide documentation from his senior rater stating the incorrect PRF was submitted.”
(AR 6.)
This is precisely what Plaintiff did. As detailed above, Plaintiff submitted a new application
and supporting documents, including affidavits from certain of his superiors and emails from Lt.
Gen. Harris. (AR 45–80.) As set forth above, in that email, Lt. Gen. Harris stated that “the correct
PRF for [Plaintiff] had him stratified 2/2/4 because I have his signed PRF and the PRF of the
Individual I rated 1/2/4 in my files.” (AR 65.) Having reviewed the supporting documents, the
Correction Board stated, “The applicant’s Senior Rater has confirmed she signed the PRF with the
rating of 2/2/4 and she has a copy of the PRF of the individual who received her 1/2/4 rating. She
has no idea how he received the incorrect PRF in the mail.” (AR 8.) In other words, the Correction
Board considered the email from Lt. Gen. Harris, which was submitted by Plaintiff, to conclude
that the 2/4 PRF submitted by Lt. Gen. Harris was the “official document” and the 1/9 PRF mailed
to Plaintiff was the “incorrect PRF.” (AR 8–9.) The Correction Board’s decision was rationally
based on evidence in the record that Plaintiff himself submitted.
With respect to the burden of production, the Court finds that the Correction Board’s
conclusion that Plaintiff failed to provide documentation from his senior rater or his unit indicating
that the 2/4 PRF was incorrect was neither arbitrary nor capricious. The Court is not persuaded by
Plaintiff’s argument that the burden of production should not have been on him to provide this
documentation. As Plaintiff references, Air Force Instruction 36-2603, Air Force Board for
Correction of Military Records (AFBCMR), ¶ 2.3 (Sept. 18, 2017) [hereinafter AFI 36-2603], sets
forth the Correction Board’s responsibilities when deciding cases:
The Board normally decides cases on the written evidence contained in the record.
It is not an investigative body; therefore, the applicant bears the burden of
providing evidence of an error or injustice. However, the Board may, in its
discretion, hold a hearing or call for additional evidence or opinions in any case.
Applicants may request a hearing; however the decision to grant a hearing is at the
sole discretion of the Board.
AFI 36-2603 ¶ 2.3 (emphasis added). This language clearly indicates that it is Plaintiff, and not
the Correction Board, who must provide evidence to show an error or injustice. Although the
Correction Board is able to call for additional evidence, it is under no obligation to do so.
Further, the Court finds the Buchanan case cited by Plaintiff to be unpersuasive given the
underlying facts in this case. In Buchanan, a decision from 1980, the United States Court of Claims
held that it could not determine the basis of the correction board’s denial of the plaintiff’s appeal
because the correction board’s “decision was without any kind of discussion of the evidence
presented to it.” 621 F.2d at 383. In other words, the court was not able to determine what
consideration, if any, the correction board gave to evidence presented by the plaintiff. Id. The court
concluded:
In the case at hand, plaintiff's request for a hearing was turned down in executive
session and relief denied upon the determination that there was insufficient evidence
to indicate probable material error or injustice. The burden that would be placed
upon plaintiff in this court would be almost impossible if the correction board were
permitted, in these circumstances, to cast aside the issues without discussion or
reason and merely state that insufficient evidence has been presented to indicate
probable injustice or material error …
Partly due to the correction board's decision to dismiss plaintiff's appeal in executive
session, there is no substantial evidence to support the findings of the board. . . .
On the basis of our foregoing analysis, we conclude that the correction board's final
determination to deny plaintiff's application without a hearing or written explanation
lacked a rational basis, was not supported by substantial evidence, and was contrary
to law.
Id. at 383–84.
Here, by contrast, the Correction Board considered the evidence presented to it by Plaintiff.
For example, in its January 24, 2019 determination, the Correction Board referenced and
characterized the email communications that Plaintiff submitted in support of his request. (AR 8,
10 ) (“The applicant’s Senior Rater has confirmed she signed the PRF with the rating of 2/2/4 and
she has a copy of the PRF of the individual was received her 1/2/4 rating. She has no idea how he
received the incorrect PRF in the mail … his Senior Rater signed and sent to the Board a PRF
assigning him a #2 rating, and subsequently reconfirmed his correct stratification was as her #2
candidate.”) Further, although Plaintiff argues that he was “in no position to compel … Lt. Gen.
Harris to provide him anything,” Plaintiff did, indeed, make a successful request, through an
intermediary, to Lt. Gen. Harris to receive relevant information. As set forth above, in response to
an email inquiry about this situation, Lt. Gen. Harris confirmed that the 2/4 PRF was the correct
one that she sent to the Promotion Board. Plaintiff’s argument that it would be unjust to require
him to seek information from his superior is weakened by the fact that he had already done
precisely what he claims would be impossible to do.
Accordingly, the Court finds that the Correction Board made a “rational connection
between the facts found and the choice made.” Ivey v. McHugh, 614 F. App’x 257, 261 (6th Cir.
2015) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). In short, the Court is not persuaded by Plaintiff’s argument that the record contained no
facts or analysis to support the Correction Board’s conclusion that the 1/9 PRF was incorrect
because the Correction Board relied on Lt. Gen. Harris’s email to make its determination. The
burden was on Plaintiff to provide evidence of an error or injustice, and the Correction Board’s
conclusion that Plaintiff failed to provide such evidence was neither arbitrary nor capricious.
2. Whether the Correction Board’s decision was “contrary to law”
Plaintiff argues that the Correction Board’s decision was contrary to law because it refused
to “expunge” the 2/4 PRF. He asserts that Lt. Gen. Harris was required to provide him with the
PRF that the Promotion Board reviewed, but that she failed to do so, which violated both statutory
and regulatory authority.
The first law to which Plaintiff points is 10 U.S.C. § 14107(a),7 titled “Integrity of the
Promotion Selection Board Process.” He contends that this statute required Lt. Gen. Harris to send
the 2/4 PRF to him before sending it to the Promotion Board, which she failed to do. The statute
states that only certain specified information concerning a promotion eligible officer can be
provided to a selection board and then sets forth what that specified information is. Id. at §
14107(a)(2). The statute further states that some of the specified information must first be made
available to the promotion eligible officer, who shall be afforded a “reasonable opportunity” to
submit comments to the promotion board about that specified information. Id. at § 14107(a)(7).
Plaintiff argues that PRFs are “created anew” for each selection board and are not contained in the
officer’s military personnel file, so they are one of the pieces of specified information that must
first be made available to a promotion eligible officer.
Plaintiff also contends that various portions of two Air Force Instructions were violated:
(1) AFI 36-2406, and (2) Air Force Instruction 36-2504, Officer Promotion, Continuation and
Selective Early Removal in the Reserve of the Air Force (Jan. 9, 2003) [hereinafter AFI 36-2504].
He argues that certain sections of these two instructions provided him with a right to receive the
2/4 PRF from Lt. Gen. Harris before she sent it to the Promotion Board, a process which, he argues,
is “integral” to the feedback and evaluation system and is a “significant right of the officer.”
(Docket No. 25 at 25.) He contends that, “apart from this presumption, or an unstated legal
7 The statutory sub-section at issue is found in U.S. Code Title 10, “Armed Forces,” Subtitle
E, “Reserve Components,” Part III, “Promotion and Retention of Offices on the Reserve Active-
Status List,” Chapter 1403, “Selection Boards,” and Section 14107, “Information furnished by
Secretary concerned to promotion boards.”
conclusion,” there is “no explanation” for the Correction Board’s failure to address his right to
receive the 2/4 PRF that was being considered, to be notified of changes to the PRF, to appeal the
PRF, and to speak directly with a senior rater about the PRF, all of which is allegedly set forth in
AFI 36-2406, ¶ 8.5.3. (Id. at 18.)
He also argues that AFI 36-2406 addresses what should happen if a senior rater intends to
downgrade a promotion eligible officer’s PRF: the senior rater is “required” to inform the officer
in writing of the change, provide a copy of the edited PRF, and inform the officer of his rights to
respond to the senior rater, to communicate directly with the Promotion Board regarding the
change, and to appeal the change. (Id. at 26 ) (citing AFI 36-2406, ¶¶ 8.5.3.1, 8.5.3.2; id. at Figure
8.1; id. at Table 10.5; id. at Attachment 2, ¶ A2.6). Plaintiff states that the record “conclusively
proves” that Lt. Gen. Harris did not follow these mandated steps, which supports the conclusion
that the 1/9 PRF – which is the one Plaintiff received that rated him more highly than the one that
the Selection Board received – was “second” and, presumably, replaced the weaker 2/4 PRF that
Plaintiff never received. (Id.)
Plaintiff contends that the Correction Board had an “affirmative obligation” to enforce
these laws and correct the errors made by Lt. Gen. Harris, but “resolutely failed” to do so. (Id.) He
believes that the Correction Board’s recommendation that he be granted supplemental promotion
consideration using the 2/4 PRF but with the opportunity to provide a letter “ignores” that fact that
these laws have been violated. (Id.)
In response, Defendant argues that the Correction Board did not make a decision that was
contrary to law because it took all of Plaintiff’s allegations into consideration and agreed with
Plaintiff that an error or injustice had occurred. (Docket No. 28 at 4–5.) Defendant characterizes
the 1/9 PRF that Plaintiff received as a “mistake” that should never have been issued. (Id. at 4.)
Accordingly, Defendant argues that Lt. Gen. Harris was not bound to correct the 1/9 PRF pursuant
to AFI 36-2406 because the “official” PRF was never actually changed. (Id. at 5.) Defendant also
asserts that the Correction Board granted Plaintiff a Special Selection Board and provided Plaintiff
with an opportunity to provide a letter to the Special Selection Board president, which was
appropriate and not in contravention of any laws. (Docket No. 28 at 4–5.)
The Court disagrees with Plaintiff and finds that the Correction Board’s decision was not
contrary to law. The Correction Board concluded that Plaintiff “presented evidence sufficient to
demonstrate an error or injustice regarding part, but not all, of his request.” (AR 9.) The error or
injustice that Plaintiff did prove was that “he was mailed the incorrect PRF, and was denied the
opportunity to discuss his rating with his Senior Rater or to write a letter to the promotion Board.”
(Id.) However, the Correction Board found that Plaintiff did not sufficiently prove any other errors
or injustices. Nevertheless, as detailed above, Plaintiff argues that it was contrary to 10 U.S.C. §
14107, AFI 36-2406, and AFI 36-2504 for the Correction Board to conclude that the 2/4 PRF was
the “correct” version and for the Correction Board to fail to “expunge” the 2/4 PRF.
The Correction Board found that the 1/9 PRF that was mailed to Plaintiff was incorrect,
and therefore concluded that Plaintiff did not get the required opportunity to discuss his rating with
Lt. Gen. Harris. In its decision, the Correction Board referenced the advisory opinion that
recommended partially granting Plaintiff’s application. (AR 8–9.) The advisory opinion concluded
that 10 U.S.C. § 14107 ensured that Plaintiff would be aware of the information in his record and
would have reasonable opportunity to submit comments to the Promotion Board, but that this did
not happen because Plaintiff did not receive the 2/4 PRF. (AR 8.) It stated, “If the applicant had
been made aware of the change to his PRF prior to the convene date of the board, he would have
had the opportunity to meet with his chain of command to discuss the change in his PRF and also
to comment on the change via a letter to the Board.” (Id.) In other words, the Correction Board
agreed with Plaintiff that certain rights set forth in 10 U.S.C. § 14107 were violated because the
PRF that Plaintiff received was not the PRF that the Promotion Board received. This finding is in
line with the requirement in 10 U.S.C. § 14107 that certain specified information must first be
made available to the promotion eligible officer, who shall be afforded a “reasonable opportunity”
to submit comments to the Promotion Board about that specified information. Id. at §§
14107(a)(2), (7).
Further, while the referenced statute and regulations certainly set forth the process for
receiving, reviewing, and challenging PRFs, Plaintiff has failed to point to any language that would
require PRFs to be “expunged” in the manner that Plaintiff argues is necessary. It may be necessary
for a senior rater to inform an officer if a PRF is being downgraded, but there is no indication that
a PRF be “expunged” if the officer did not receive it, as is the case here.
In sum, Plaintiff has failed to demonstrate that the Correction Board violated any applicable
law or statutes. For these reasons, the Court is not able to find that the Correction Board’s decision
is not in accordance with or is contrary to any applicable laws.
3. Whether the Correction Board ordered an inadequate remedy
Plaintiff takes issue with the Correction Board’s recommendation that he be considered for
promotion by a Special Selection Board and be given the opportunity to provide a letter to the
Special Selection Board president. (AR 10.) Plaintiff contends that this remedy is inadequate
because it: (1) is not equitable; (2) forces him to choose between his “right” to submit comments
about the PRF and his “right” to anonymity before the Special Selection Board; and (3) focuses
on the rights of others over his own rights. (Docket No. 25 at 27–28.) Accordingly, he believes
that the only adequate remedy is to “expunge” the 2/4 PRF from his military record and order a
Special Selection Board to consider the 1/9 PRF. (Id. at 28–29.) All other remedies are, according
to Plaintiff, arbitrary and capricious.
In response, Defendant argues that the remedy offered by the Correction Board was
adequate to address the violations that the Correction Board found. According to Defendant, the
remedy that Plaintiff insists is necessary – for the Special Selection Board to consider the 1/9 PRF
– would be arbitrary and capricious because the evidence did not reflect that the 2/4 PRF was
incorrect or that the 1/9 PRF was correct. Accordingly, ordering a Special Selection Board to
consider a PRF that was not determined to be correct would “undermine the entire system of officer
promotions.” (Docket No. 28 at 5.) As for Plaintiff’s concerns about his anonymity, Defendant
contends that Plaintiff chose to reveal his identity to the Special Selection Board and could have,
instead, provided information anonymously.
The Court finds that the remedy offered by the Correction Board was not arbitrary,
capricious, or contrary to applicable statutes and regulations. See Covill, 959 F.2d 62–63; Baker,
523 F.2d at 1035. Plaintiff argues that the Correction Board is under an “affirmative duty to order
a remedy designed to make [Plaintiff] whole.” (Docket No. 25 at 28.) In other words, he contends
that the Correction Board must put him in the position that he would have been in had an error or
injustice not occurred. To support this contention, he points to a regulation requiring the Correction
Board to make a determination in writing regarding “[w]hether the applicant has demonstrated the
existence of a material error or injustice that can be remedied effectively through correction of the
applicant's military record and, if so, what corrections are needed to provide full and effective
relief.” 28 C.F.R. § 865.4(h)(4). This regulation indicates that the standard is “full and effective”
relief rather than making Plaintiff whole.
The relief provided by the Correction Board allowed Plaintiff to provide feedback on his
PRF because he was not afforded that opportunity originally because of an error or injustice made
by either Lt. Gen. Harris or others. The Court finds that this relief fully and effectively addresses
and remedies the error that the Correction Board identified. Although this remedy does not require
the Special Selection Board to consider the 1/9 PRF rather than the 2/4 PRF, the Correction Board
nevertheless provided Plaintiff with relief that it rationally found to be appropriate. Accordingly,
the Court finds that the remedy provided by the Correction Board was proper, whether or not it
was “equitable” in the way that Plaintiff believes is required.
With respect to Plaintiff’s argument that he has been forced to choose between his “right”
to submit comments about the PRF and his “right” to anonymity before the Special Selection
Board, the Court is not persuaded that this situation provides any reason to find the Correction
Board’s decision arbitrary and capricious. As Plaintiff states, “[a]n officer’s rights to anonymity
before a [Special Selection Board] was a widely known policy within the Air Force even though
not explicitly in AFI 36-2504.” (Docket No. 25 at 14 n.6.) In other words, Plaintiff has not
demonstrated that he has a “right” to anonymity before the Special Selection Board. Accordingly,
the Court cannot find that this “right” exists or that the Correction Board violated this “right.”
Therefore, Plaintiff’s complaint about being forced to choose between two “rights” is without
support.
Finally, the Court finds no merit in Plaintiff’s argument that the Correction Board’s remedy
is improper under the APA because it considered the rights of others. Plaintiff accuses the
Correction Board of “protecting the status quo” and failing to provide Plaintiff with “full and
effective” relief by considering other promotion eligible officers when crafting a remedy. (Id. at
28.) However, Plaintiff’s argument fails to overcome the “strong presumption that military
administrators discharged their duties correctly, lawfully, and in good faith.” Escobedo v. Green,
602 F. Supp. 2d 244, 249 (D.D.C. 2009). Plaintiff provides no concrete reason why the Correction
Board should not be permitted to consider how its decision might impact other promotion eligible
officers. The Court is unaware of any legal authority indicating that the Correction Board must
take a tunnel vision approach and consider only Plaintiff’s needs to the exclusion of others who
may be impacted by its decision.
In sum, the Court’s role is not to correct decisions made by the Correction Board with
which a promotion eligible officer is dissatisfied, as that “would destabilize military command and
take the judiciary far afield of its areas of competence.” Escobedo, 602 F. Supp. 2d 248. Instead,
the Court may only correct decisions that are arbitrary and capricious. In crafting its remedy, the
Correction Board did not “rel[y] on factors which Congress had not intended it to consider, entirely
fail[] to consider an important aspect of the problem, [or] offer[] an explanation for its decision
that runs counter to the evidence before the agency” and the remedy was not “so implausible that
it could not be ascribed to a difference in view or the product of agency expertise.” Nat’l Ass’n of
Home Builders, 551 U.S. at 658 (quotation omitted). While the Correction Board’s remedy may
be unfair in Plaintiff’s eyes because it did not “expunge” the 2/4 PRF, Plaintiff has failed to
demonstrate that the decision was arbitrary and capricious. For these reasons, the Court finds no
basis for affording Plaintiff relief with respect to the Correction Board’s remedy.
4. Whether the Correction Board failed to obtain evidence
Plaintiff argues that the Correction Board acted arbitrarily and capriciously when it failed
to obtain evidence from Lt. Gen. Harris or the 22nd Air Force regarding “the events and
circumstances leading to” Plaintiff receiving the 1/9 PRF and Lt. Gen. Harris sending the 2/4 PRF
to the Promotion Board. (Docket No. 25 at 29–30.) He relies on 32 C.F.R. § 865.2(c), which states
that the Correction Board “may, in its discretion, hold a hearing or call for additional evidence or
opinions in any case.” (Id. at 29.) He also asserts that courts “routinely” find that correction board
act arbitrarily and capriciously when they fail to “go beyond simply requiring the applicant to
produce documents.” (Id.)
The Court does not find Plaintiff’s argument compelling. First, the cited regulations
weaken Plaintiff’s position. The Correction Board is explicitly deemed to “not” be an
“investigative body.” 32 C.F.R. § 365.2(c). Further, the regulation clearly states that the Correction
Board “may” call for additional evidence, but that such a decision is “in its discretion.” Id. Based
on this language alone, the Court cannot find that the Correction Board’s decision to not seek
evidence from Lt. Gen. Harris or any other sources was arbitrary or capricious, or in violation of
any laws. Further, Plaintiff cites to only one case: Buchanan, 621 F.3d 834. However, as set forth
above, the Court finds this case to be unpersuasive given the underlying facts. Plaintiff has failed
to cite to any other cases to support this position, despite contending that courts “routinely” make
the findings he described. Finally, as discussed above, AFI 36-2603 indicates that it is Plaintiff,
and not the Correction Board, who must provide evidence to show an error or injustice. Although
the Correction Board is able to call for additional evidence, it is under no obligation to do so. In
short, Plaintiff has failed to provide any convincing evidence to demonstrate that the Correction
Board violated the APA by not obtaining additional evidence.8
8 In his response to Defendant’s motion, Plaintiff contends that “[s]omething happened that
caused [Lt.] Gen Harris to sign two PRFs for [Plaintiff], and the Government remains the only
party with access to this information and an unwillingness to put it on the record.” (Docket No. 29
at 10.) However, whether Defendant could obtain additional information during this litigation is
irrelevant because the Court is limited to reviewing the administrative record. Visconi v. U.S., No.
3:12–cv–01012, 2013 WL 2467715, at *8 (M.D. Tenn. Jun. 7, 2013).
B. Whether the Corrections Board’s Decision Was Supported by Substantial Evidence
In addition to his arguments that the Correction Board acted arbitrarily, capriciously, and
not in accordance with law, Plaintiff also argues that the decision was not supported by substantial
evidence. He takes issues with two of the Correction Board’s findings: (1) that the 2/4 PRF was
the correct PRF, and (2) that Lt. Gen. Harris “subsequently reconfirmed [that Plaintiff’s] correct
stratification was as her #2 candidate.” (Docket No. 25 at 22–24 (citing AR 9–10).) In support of
his position, Plaintiff relies on Lt. Gen. Harris’s email statements; the dates on which the two PRFs
were sent and received by various people and entities; and alleged flaws in the 2/4 PRF.
Under a substantial evidence review, the Court must ask whether a “reasonable mind might
accept a particular evidentiary record as adequate to support a conclusion.” Visconi, 2013 WL
2467715 at *8. As detailed above, Lt. Gen. Harris stated in her email that “the correct PRF for
[Plaintiff] had him stratified 2/2/4 because I have his signed PRF and the PRF of the Individual I
rated 1/2/4 in my files.” (AR 65.) The Correction Board reviewed this email and concluded that
the 2/4 PRF submitted by Lt. Gen. Harris was the “official document” and the 1/9 PRF mailed to
Plaintiff was the “incorrect PRF.” (AR 8–9.) Plaintiff argues that the “more logical inference” is
that Lt. Gen. Harris changed Plaintiff’s stratification after having a discussion with Col. Van
Dootingh. (Docket No. 29 at 12.) The Court cannot concede that this inference is the “more logical
inference.” But, even if it were, the Court cannot find that the Correction Board’s conclusion was
therefore necessarily without any logic.
The Court must give the “benefit of the doubt” to the Correction Board. Wilson Air Center,
LLC, 372 F.3d at 813. The Court concludes that a “reasonable mind” could find adequate support
for the Correction Board’s conclusion that the 2/4 PRF was the “correct” one. In other words, there
was substantial evidence for the Correction Board to conclude that Lt. Gen. Harris’s statement that
“the correct PRF for [Plaintiff] had him stratified 2/2/4” meant that the 2/4 PRF was the version
that Lt. Gen. Harris intended for the Promotion Board to receive and review. Because the
Correction Board’s decision is supported by substantial evidence, its “determination must stand
regardless of whether the reviewing court would resolve the issues of fact in dispute differently.”
Bogle, 998 F.2d at 347.
V. RECOMMENDATION
For these reasons, it is respectfully RECOMMENDED that:
1. Plaintiff Richard B. Reiter’s motion for judgment on the administrative record
(Docket No. 24) be DENIED.
2. Defendant Frank Kendall III’s motion for judgment on the administrative record
(Docket No. 26) be GRANTED.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen
(14) days of service of this Report and Recommendation and must state with particularity the
specific portions of this Report and Recommendation to which objection is made. See Rule
72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.02(a). Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District
Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any response to the objections
must be filed within fourteen (14) days after service of objections. See Federal Rule 72(b)(2) and
Local Rule 72.02(b).
Respectfully submitted,
United States Magistrate Judge
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