Cone, George E. v. Caldera, Louis

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2000 Decided September 12, 2000

No. 99-5110

George E. Cone, Jr.,

Appellee

v.

Louis Caldera, Secretary of the Army,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00168)

Fred E. Haynes, Assistant U.S. Attorney, argued the cause

for appellant. With him on the brief were Wilma A. Lewis,

U.S. Attorney, and Michael J. Ryan and R. Craig Lawrence,

Assistant U.S. Attorneys.

John A. Wickham argued the cause and filed the brief for

appellee.

Before: Williams, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: George E. Cone, Jr. filed suit in

United States District Court challenging the Army's refusal

to amend his Officer Evaluation Report. The court concluded

that the Army's refusal was arbitrary and capricious, and

directed the Army to improve Cone's rating. We reverse.

I

Cone served as a captain in the United States Army and

commanded an infantry company during the Persian Gulf

War.1 After the war, his supervisors completed an Officer

Evaluation Report (OER) assessing his performance from

June 14, 1990 to June 13, 1991. An OER is used to evaluate

an officer's performance and career potential. See Army

Regulation 623-105, at p 1-6(a) [hereinafter AR 623-105]. At

least two of the officer's superiors prepare the report--a

"rater" who directly supervises the officer and a "senior

rater" higher in the chain of command. Id. p 3-1. Cone's

rater was his battalion commander, Lt. Colonel Stephen S.

Smith. His senior rater was his brigade commander, Colonel

James C. Riley.

The OER form contains blanks that require the rater and

senior rater to provide both numerical and narrative assess-

ments. Part VII of the form is reserved for the senior rater,

who evaluates the officer "by comparing the rated officer's

potential with all other officers of the same grade." Id.

p 4-16(b). In Part VII(a), the senior rater is to check one of

ten blocks that rank the officer's potential against that of all

other officers of that grade. According to Army regulations,

the evaluation is "based on the premise that in a representa-

tive sample of 100 officers of the same grade or grade

grouping (Army-wide), the relative potential of such a sample

will approximate a bell-shaped normal distribution pattern."

Id.2 This means, the regulations continue, "that in a repre-

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1 Cone was promoted to major in October of 1996.

2 In a normal distribution, most of the data points are "clus-

tered near the mean, and the density or relative frequency of the

sentative sample of 100 officers of the same grade or grade

grouping (Army-wide) only one officer can reasonably be

expected to be placed in the top block." Id. p 4-16(c).

Slightly more officers may be ranked in the second block,

which represents the top 2-3% of Army officers of that grade,

and so on. In a representative sample of 100, it is expected

that the majority of officers will be rated in the two middle

blocks. See J.A. at 147 (illustrative OER form). The senior

rater must also write narrative comments addressing the

officer's performance in Part VII(b) of the OER. See AR

623-105, at p 4-16(d)(2), (3).3

Once completed, the Army compares the senior rater's

assessment of the officer to the senior rater's rating history

for all officers of the same grade--known as the senior rater's

"profile." Id. pp 2-5, 4-16(d)(5)(a). "The purpose of the

profile is to place the rated officer's OER in perspective by

revealing the senior rater's general rating tendency." Id.

p 4-16(d)(5)(a). By comparing a specific OER to the profile,

the Army can discern whether a particular officer performed

above, at, or below the "center of mass"--i.e., the median

ranking--of the officers ranked by the same senior rater.

In completing Cone's OER, senior rater Riley checked the

second block from the top. Of eleven captains rated by Riley

during this period, he ranked seven in the top block, three

(including Cone) in the second block, and one in the third

block. See J.A. at 147. According to this profile--which was

included in Cone's OER--Riley's center-of-mass ("COM")

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numbers decreases with increasing distance from the mean."

David W. Barnes & John M. Conley, Statistical Evidence in

Litigation 140 (1986). "If the frequencies with which the numbers

in the normal population appear as the result of random experi-

ments are plotted on a graph, the figure resembles a bell-shaped

curve." Id.

3 The Army has recently altered its regulations and OER form,

and has dispensed with the ten-block rating system. See Army

Regulation 623-105 (Apr. 1, 1998); DA Form 67-9 (Apr. 1, 1998).

The citations in this opinion refer to the regulations and forms that

were in effect at the time of Cone's evaluation.

was the top block. Cone's rating was therefore below center-

of-mass for the group even though he was rated in the

second-highest block, which corresponds to the top 2-3% of

captains Army-wide.

Cone appealed his OER to the Officer Special Review

Board (OSRB), which is charged with reviewing requests to

correct erroneous military records. See AR 623-105, at

p 9-2(i). He contended that "[t]he senior rater blocking ...

does not accurately portray my potential and may penalize

me when viewed by future boards." J.A. at 144. As support

for this assertion, he supplied affidavits from Riley and Smith

indicating that Riley "did not intend for [Cone's] OER to

reflect below center of mass performance," and acknowl-

edging that Riley had failed "to tightly manage" his senior

rater profile. Id. at 150.

The Special Review Board denied Cone's request. See

OSRB Decision at 4 (July 2, 1993) (J.A. at 143). The Board

rejected the affidavit from Riley, noting that Army regula-

tions preclude "statements from rating officials that they did

not intend to evaluate as they did from serving as the basis

for favorable action on appeals." Id.; see AR 623-105, at

p 5-32(b)(2), App. p N-2(b)(3). The Special Review Board

also noted that Riley had submitted "virtually identical"

memoranda in support of appeals by five other captains he

had similarly rated below center-of-mass. 1993 OSRB Deci-

sion at 2 (J.A. at 141).4 Although the Board recognized that

there "was a persistent failure by the [senior rater] to man-

age his profile for [captains] in such a way as to preclude any

unintended below-COM ratings," it concluded that Cone had

failed to adduce "clear and convincing evidence" (as required

by the regulations) to rebut the "presumption of regularity"

in the OER. Id. at 3-4 (J.A. at 142-43) (citing AR 623-105,

at p 5-32).

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4 The Special Review Board further found that of nine below

center-of-mass ratings made by Riley and processed by the Army

between August 1990 and February 1992, he supported or offered

to support appeals by at least seven of the subject officers. See

1993 OSRB Decision at 3 (J.A. at 142).

Relying on new statements from his rater and senior rater,

Cone once again appealed to the Special Review Board and

the Board once again denied Cone's request. See OSRB

Decision (July 29, 1994) (J.A. at 158-60). In particular, the

Board rejected Cone's claim that the comments Riley wrote

in the narrative portion of the OER supported a center-of-

mass rating. Those words, the Special Review Board said,

"are not comparable to" what Riley wrote regarding "other

officers [whom] he did in fact place in the top block COM."

Id. Specifically, the Board noted that Riley characterized

Cone as having "solid potential," while he described those he

placed in the top block as having "unlimited" or "outstanding

potential." Id. Similarly, while Riley's recommendation re-

garding Cone was "promote to major and consider for [Com-

mand and General Staff College] when eligible," for the

others it was "promote to major and select for [Command and

General Staff College] ASAP." Id. (emphasis added).

Cone next appealed to the Army Board for Correction of

Military Records. See 10 U.S.C. s 1552(a)(1). Based on the

same evidence, Cone urged amendment of his OER to reflect

a center-of-mass rating. The Correction Board rejected his

appeal, concluding that, despite Riley's inability "to establish

a ... profile for captains that approximated a bell-shaped

normal distribution," Cone's rating accurately captured Ri-

ley's assessment of Cone's performance compared to that of

other officers of the same grade. Correction Board Decision

at 4 (Apr. 26, 1995) (J.A. at 128). The Board noted that its

conclusion was also "supported by the type of comments used

by the [senior rater] to distinguish between a top block officer

and a two block officer." Id.

After losing before the Correction Board, Cone filed suit in

the United States District Court for the District of Columbia,

alleging that the Board's denial of his request violated the

Administrative Procedure Act, 5 U.S.C. s 706(2)(A), and ask-

ing the court to correct his records.5 Specifically, Cone

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5 Cone also challenged his nonselection to the Command and

General Staff College, a challenge the district court found non-

reviewable. See Cone v. Caldera, 46 F. Supp. 2d 3, 7-8 (D.D.C.

argued that Army regulations require a senior rater to rank

officers along a bell-shaped curve, and that Riley's failure to

maintain a profile hewn to that curve constituted arbitrary

and capricious action. Although the district court found that

the regulations "do not mandate that each senior rater main-

tain a bell-shaped-curve distribution," Cone v. Caldera, 46

F. Supp. 2d 3, 6 (D.D.C. 1999) (internal quotation omitted), it

nevertheless held the Army's ranking arbitrary and capri-

cious, see id. at 7. After undertaking a statistical analysis,

the court determined that "[t]he senior rater's ranking of

seven captains in the top block is more than twenty standard

deviations above the expected value," and that "the center of

mass of an eleven-officer profile" could not "reasonably be

located in the top block." Id. at 6-7. This, the court said,

indicated that the Army had acted arbitrarily and capriciously

in declining to amend Cone's OER "to reflect a center of

mass rating." Id. at 7. The court ordered the Army to make

the necessary amendment, see id., and the Army appealed.

II

The Secretary of a military department, acting through a

civilian board, "may correct any military record of the Secre-

tary's department when the Secretary considers it necessary

to correct an error or remove an injustice." 10 U.S.C.

s 1552(a). An officer's OERs are presumed to be "adminis-

tratively correct" and to "[r]epresent the considered opinions

and objective judgment of the rating officials at the time of

preparation." AR 623-105, at p 5-32. An officer seeking a

correction must prove "clearly and convincingly" that the

"presumption of regularity" in the preparation of administra-

tive records should not apply, and that "[a]ction is warranted

to correct a material error, inaccuracy, or injustice." Id.

p 9-7(a) (citing id. p 5-32); see Frizelle v. Slater, 111 F.3d

172, 177 (D.C. Cir. 1997) (noting "strong but rebuttable

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1999). Cone has not pressed this claim on appeal, apparently

because it became moot due to his subsequent selection to the

College. See Cone Br. at 4.

presumption that administrators of the military, like other

public officers, discharge their duties correctly, lawfully, and

in good faith") (internal quotations omitted).

Although we have jurisdiction to review the decisions of the

Correction Board,6 we do so under an "unusually deferential

application of the 'arbitrary or capricious' standard" of the

Administrative Procedure Act. Kreis v. Secretary of the Air

Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see Kidwell v.

Department of the Army, 56 F.3d 279, 286 (D.C. Cir. 1995).7

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 result that would

destabilize military command and take the judiciary far afield

of its area of competence. See Orloff v. Willoughby, 345 U.S.

83, 94 (1953) ("Orderly government requires that the judicia-

ry be as scrupulous not to interfere with legitimate Army

matters as the Army must be scrupulous not to intervene in

judicial matters."). We review de novo the district court's

ruling, on cross-motions for summary judgment, that the

Correction Board acted arbitrarily and capriciously in this

case. See Frizelle, 111 F.3d at 176; Kidwell, 56 F.3d at 286.

Cone contends that Riley's failure to adhere to a bell-curve

distribution, and the Army's refusal to correct that failure,

constituted arbitrary and capricious agency action in violation

of Army regulations. The regulations, however, do not re-

quire adherence to a bell-shaped curve; rather, they state a

"premise" upon which senior raters are to base their evalua-

tions:

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6 See Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1512

(D.C. Cir. 1989) (citing Chappell v. Wallace, 462 U.S. 296 (1983));

see also Frizelle, 111 F.3d at 176; Dickson v. Secretary of Defense,

68 F.3d 1396, 1401-02 & n.6 (D.C. Cir. 1995); Kidwell v. Depart-

ment of the Army, 56 F.3d 279, 283-86 (D.C. Cir. 1995).

7 Cone's appellate brief asserts that his incorrect OER also

violated his rights under the Privacy Act, 5 U.S.C. s 552a(e)(5).

Neither Cone's complaint nor the district court's opinion addresses

such a claim, and we therefore do not consider it here.

The senior rater's evaluation is made by comparing the

rated officer's potential with all other officers of the same

grade, or grade groupings.... His or her evaluation is

based on the premise that in a representative sample of

100 officers of the same grade or grade grouping (Army-

wide), the relative potential of such a sample will approx-

imate a bell-shaped normal distribution pattern.

AR 623-105, at p 4-16(b). As the district court itself said,

this regulation does "not mandate that each senior rater

maintain a bell-shaped-curve distribution" in each rating peri-

od. Cone, 46 F. Supp. 2d at 6 (internal quotation omitted).8

Nonetheless, the district court concluded that Riley's rank-

ings of his eleven officers departed so radically from what

statistically would have been expected as to prove that Riley

"violated p 4-16 in rating at least some of the other captains

against whom Cone was compared." Id. To reach this

conclusion, the district court applied a test of statistical

significance to the distribution of Riley's rankings of the

eleven captains. See id. at 6 & n.1.

Even without a statistical analysis, it is clear that Riley was

lax in following the rating guidelines. The Special Review

Board itself determined that, over a series of rating periods,

Riley exhibited "a persistent failure ... to manage his profile

for [captains] in such a way as to preclude any unintended

below-COM ratings." 1993 OSRB Decision at 3 (J.A. at 142).

But Riley's inability to adhere to a bell-curve distribution is

not sufficient to render arbitrary the Army's refusal to cor-

rect Cone's record. The Army anticipates, and compensates

for, the fallibility of individual raters by requiring that each

rater's personal profile (indicating the number of officers he

or she has placed in each box during the rating period) be

included in the OER of each officer he or she reviews. As

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8 See also Cone, 46 F. Supp. 2d at 6 ("The Army correctly notes

that ... 'since there are thousands of captains in the Army, it is

statistically possible that a particular senior rater may have a

number of captains that he or she is senior rating that merit

placement in the top block."') (quoting Def.'s Resp. to Pl.'s State-

ment of Facts p 41).

the regulations state, "[t]he purpose of the profile is to place

the rated officer's OER in perspective by revealing the senior

rater's general rating tendency." AR 623-105, at

p 4-16(d)(5)(a). Put more bluntly, "[t]he profile is meant to

be an indicator of the senior rater's tendency to inflate or

deflate ratings." Id. p 9-7(f). Hence, anyone examining the

OER to determine the true ability of the officer can take into

account whether his ratings have been rendered by an "easy"

or "hard" grader. This is a reasonable response to the

problem, and one which makes the Correction Board's refusal

to amend Cone's OER reasonable as well.

Moreover, we would be hard pressed to find a reversible

"error" in Cone's record even without the clarification provid-

ed by the senior rater's profile. Under the regulations, the

senior rater's obligation is to compare "the rated officer's

potential with [that of] all other officers of the same grade"

Army-wide. Id. p 4-16(b). The rating box in which Cone

was placed represents the top 2-3% of all Army officers of

the same rank. There is no evidence in the record that

Cone's true abilities place him in the only higher category--a

category reserved for the Army's top 1%. See id. p 4-16(c).

Indeed, the principal flaw to which Cone points--Riley's

inability to adhere to a bell curve--indicates only that Riley

tended to inflate his officers' ratings above the curve: he

consistently placed most of his officers in the top few boxes

on the rating chart, despite the instruction that those boxes

be reserved for the top few percent of all officers in the

Army. See, e.g., 1993 OSRB Decision at 3 (J.A. at 142)

(noting profile periods in which Riley gave top-block ratings

to 22 of 61, 12 of 19, 6 of 11, and 26 of 32 captains). Although

this could suggest that Cone's ranking should not have been

as high as the one Riley gave him, it certainly does not

establish that he should have been ranked even higher.9

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9 Cone notes that Riley wrote on the OER: "This evaluation

does not reflect a downturn in performance, rather I have restarted

my profile." J.A. at 147. Army regulations permit a rater to

restart his profile when necessary to convey his intended evaluation

to selection boards and personnel managers. See AR 623-105, at

p 3-12.1. Although Riley's comment means that Cone's second-

In support of the contention that he was misrated, Cone

offers a post-evaluation affidavit in which Riley states that he

"did not intend for [Cone's] OER to reflect below center of

mass performance." J.A. at 150. But the Correction Board

reasonably refused to credit the affidavit on the basis of

Army regulations providing that "[s]tatements from rating

officials that they did not intend to rate [an officer] as they

did" will "not be used to alter or withdraw a report." AR

623-105, at p 5-32(b)(2); see id. App. p N-2(b)(3). The ratio-

nale for these regulations is an understanding that raters

may attempt to retract otherwise accurate assessments when

requested to do so by their disappointed officers. Such post-

hoc statements by rating officials, the regulations explain,

"often reflect retrospective thinking, or second thoughts,

prompted by an appellant's non-selection or other unfavorable

personnel action claimed to be the sole result of the contested

report." Id. The Correction Board's refusal to credit Riley's

affidavit is particularly reasonable in this case, given that

Riley had submitted "virtually identical" memoranda in sup-

port of the appeals of many other captains who likewise

challenged the below center-of-mass ratings he gave them

during the same time period. 1993 OSRB Decision at 2 (J.A.

at 141). The Board reasonably regarded these memoranda

as reflections of Riley's sympathy for the pleas of his subor-

dinates, rather than as accurate statements of his original

intent.

Cone also asks us to consider affidavits, authored by senior

Army officers, that contend that the adjectives Riley used to

describe him in the narrative section of the OER indicate a

center-of-mass rating. See J.A. at 96-99. Both affidavits

were written in November of 1998--after the district court

complaint was filed and long after the close of the administra-

tive proceedings. Because the affidavits were not part of the

administrative record, we may not consider them on appeal.

See Environmental Defense Fund, Inc. v. Costle, 657 F.2d

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block rating should not be regarded as a downturn in Cone's own

performance, it says nothing about where he ranks in comparison

with his peers.

275, 284-86 (D.C. Cir. 1981); see also Camp v. Pitts, 411 U.S.

138, 142 (1973). In any event, the affidavits are neither

sufficiently specific, nor sufficiently authoritative, to affect the

result here.10

In conclusion, we observe that the district court's remedial

order reveals just what a quagmire we would enter were we

to uphold Cone's challenge to his OER. The court directed

the Army to amend Part VII(a) of Cone's report "to reflect a

center of mass rating." Cone, 46 F. Supp. 2d at 7. But how

should it be amended? Cone interprets the court's mandate

as requiring that he be given a top-block rating, see Cone Br.

at 34-35, as do we.11 Yet, as already noted, there is no

evidence that Cone qualifies as one of the Army's top 1%.

Moreover, even if Riley were guilty of rampant grade-

inflation, there is no evidence that the seven officers to whom

he gave top-block rankings still did not merit higher rankings

than Cone. Thus, if Cone were moved to the top block to

achieve a center-of-mass result, would not those seven officers

have grounds for appeal, complaining that their own compara-

tive positions had been unfairly deflated? Indeed, would not

the same be true for all captains, Army-wide, whose senior

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10 By the same token, we decline to give any weight to the

Special Review Board's conclusion that the words Riley used in

Cone's OER were "not comparable" to the words he used to

describe other officers whom "he did in fact place in the top block

COM." 1994 OSRB Decision (J.A. at 159). The Army successfully

argued below that the court should deny Cone discovery of the

OERs of the other officers upon which this comparison was based,

even in redacted form, on the ground that they were not part of the

administrative record before the Correction Board. See Cone v.

Caldera, Civ. No. 97-168, slip op. at 2-3 (D.D.C. Aug. 21, 1998) (J.A.

at 33-34). But if that is true, then the comparisons cannot provide

substantial evidence to support the Board's decision. On the other

hand, if the comparisons were before the Board, by keeping them

out of the appellate record the Army has deprived this court of any

basis for concluding that the Board's characterizations are valid.

11 The other alternative--lowering the ratings of some officers

now in the top block in order to make the second block the center-

of-mass--would only further complicate the problem discussed in

the following text.

raters had placed them in the top block? The knowledge that

"correcting" Cone's grades would ultimately require us to

reassess the relative rankings of his entire cohort--a task for

which a court is spectacularly unsuited--only further con-

firms the wisdom of deferring to the reasonable judgment of

the Correction Board. See Kreis, 866 F.2d at 1514 ("[T]he

alteration of a record may correct one injustice only to

commit another, or perhaps only to incur some other equally

significant institutional cost. All such balancing of consider-

ations is to be done by the Secretary, free of judicial second-

guessing."); see also Sargisson v. United States, 913 F.2d

918, 922 (Fed. Cir. 1990) ("A court lacks the special expertise

needed to review reserve officers' records and rank them on

the basis of relative merit.").

III

At bottom, Cone argues not that he was graded too low in

comparison to all officers of his rank, but that he did not get

the full benefit of his superior's inflated grading curve. Be-

cause we conclude that this does not constitute cause for

requiring the Correction Board to amend Cone's evaluation

report, we reverse the decision of the district court.