Musengo, James v. Caldera, Louis

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2001 Decided April 16, 2002

No. 00-5347

James Musengo,

Appellant

v.

Thomas E. White, Secretary of the Army,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 99cv01884)

Charles W. Gittins argued the cause and filed the briefs for

appellant.

Diane M. Sullivan, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

Howard Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: Sentelle, Randolph and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Plaintiff James Musengo chal-

lenges the Army's refusal to remove an Officer Evaluation

Report from his military record. The District Court granted

summary judgment against Musengo, concluding that the

Army Board for Correction of Military Records did not act

arbitrarily or capriciously in refusing to expunge the report.

We affirm.

I

Musengo is currently a major in the United States Army

Reserve. During the period at issue in this case, he was a

captain on active duty, instructing members of the Reserve

Officer Training Corps and teaching courses in military sci-

ence at the University of Akron. In July 1992, Musengo

received an Officer Evaluation Report (OER) assessing his

performance from June 24, 1991 to June 23, 1992. We have

recently described in detail the officer rating system em-

ployed by the Army at the time of Musengo's evaluation, see

Cone v. Caldera, 223 F.3d 789, 790-91 (D.C. Cir. 2000), and

we therefore sketch it only briefly here.1

An OER is used to evaluate an officer's performance and

career potential. See Army Regulation (AR) 623-105, at

p 1-6(a) (Apr. 30, 1992). At least two of the officer's superi-

ors prepare the OER. The first is a "rater," who directly

supervises the rated officer and is familiar with his or her

day-to-day performance. Id. p 3-4. The second is a "senior

rater"--here, Colonel Joseph M. Barrow--who is charged

with "evaluat[ing] the rated officer from a broad organization-

al perspective," including measuring the officer's potential for

__________

1 In 1998, the Army altered its regulations and OER form,

including the block rating system discussed in the text infra. See

Army Regulation 623-105 (Apr. 1, 1998). The citations in this

opinion refer to the regulations in effect at the time of Musengo's

disputed OER.

promotion relative to the larger group of officers under the

senior rater's command. Id. p 3-10(a).

The OER form contains blanks for both a numerical and a

narrative assessment of the rated officer. In Part VII(a), the

senior rater is to check one of a column of nine blocks that

compare "the rated officer's potential with all other officers of

the same grade." Id. p 4-16(b).2 The rater's evaluation is to

be based on the premise that in a representative sample of

officers Army-wide, the distribution of ratings "will approxi-

mate a bell-shaped normal distribution pattern." Id.3 Ac-

cording to the regulations, this means "that in a representa-

tive 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). An-

other two are expected to fall in the second block, and so on.

See id. fig. 4-4. The center block, block five, is expected to

be the rating achieved by 60 officers out of a representative

100. Id.

Once the OER is completed, the Army compares the senior

rater's assessment of the individual 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). By comparing a specific officer's OER to his

senior rater's profile, the Army can discern whether that

__________

2 In Cone, the Army described the column as containing ten

blocks. Army Br. at 5, Cone. The Army now states that the

column contains nine blocks, Army Br. at 2 n.4, Musengo, and this

appears to be correct. What could be construed as two equally

weighted blocks in the center of the column is instead a single block

into which the Army expects 60% of the evaluations of a representa-

tive sample to fall. See AR 623-105, at fig. 4-4.

3 In a normal distribution, most of the data points are "clustered

near the mean, and the density or relative frequency of the num-

bers 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 experiments are plotted

on a graph, the figure resembles a bell-shaped curve." Id.

officer performed above, at, or below the "center-of-mass"--

i.e., the median ranking--of all officers ranked by the same

senior rater. Moreover, by comparing the profiles of differ-

ent senior raters, the Army can determine whether one

rater's "rating tendency" is more lenient than that of another.

Id. p 4-16(d)(5)(a); see id. p 9-7(f).

On the OER that is in dispute in this case, Musengo's

senior rater, Colonel Barrow, gave Musengo a second-block

rating--corresponding to the top 2-3% of Army captains

according to the expected distribution pattern set out in the

regulations. Id. fig. 4-4. Within Barrow's personal profile

for the relevant time period, however, this placed Musengo

below the center-of-mass of the captains Barrow rated. Of 54

captain reports completed by Barrow during the period, 32

contained top-block ratings, 20 contained second-block rat-

ings, and 2 placed captains in the third block. See Joint

Appendix (J.A.) at 32.

Concerned that a below-center-of-mass rating would hurt

his chances of promotion, Musengo contacted Barrow, who

told Musengo that he had intended to rate Musengo at

center-of-mass, and that he had thought the second-block

rating was in fact his center-of-mass. Armed with this infor-

mation, Musengo appealed to the Officer Special Review

Board (OSRB), which has the power to correct substantive

inaccuracies in an OER. AR 623-105, at p 9-2(i). After the

OSRB denied Musengo's initial request to delete the senior

rater's numerical rating from his OER, Musengo obtained a

supporting letter from Barrow and resubmitted his request.

In the letter, Barrow stated: "It was my clear intent to give

CPT Musengo a strong center of mass evaluation on this

OER and also get him promoted." J.A. at 11. Musengo also

provided the OSRB with the transcript of a deposition in

which Barrow reiterated that "it was my desire that [Musen-

go] be placed in center of mass," and that "I believed that my

center of mass was a two block at that time." J.A. at 19.

The OSRB denied Musengo's second appeal. Thereafter,

Musengo filed three more appeals to the OSRB, all of which

were likewise unsuccessful.

Following the denial of his requests by the OSRB, Musen-

go appealed to the Army Board for Correction of Military

Records. The Correction Board is the "next agency in the

Army's redress system," AR 623-105, at p 9-5(f), and has the

power to direct changes in military records in order to correct

"material error or injustice," AR 15-185, at p 1-8(b).4 The

Board concluded that "the contested OER appears to repre-

sent a fair, objective and valid appraisal of [Musengo's]

demonstrated performance and potential, and represents the

considered opinion and objective judgment of the senior rater

at the time of preparation." ABCMR Decision at 4 (March

30, 1994), reproduced at J.A. 5, 8. Because it was "not

convinced that the senior rater was not aware that his center

of mass was within the top block at the time he rated the

applicant," the Board denied Musengo's appeal. Id.

Musengo then filed the instant action in the United States

District Court for the District of Columbia. He alleged that

the Correction Board's decision was arbitrary and capricious

in violation of the Administrative Procedure Act (APA), 5

U.S.C. s 706(2)(A), and sought removal of the disputed OER

from his military record. The district court granted sum-

mary judgment in favor of the Army, and this appeal fol-

lowed.

II

Under Army regulations, OERs are presumed to be "ad-

ministratively 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(a). An appli-

cant petitioning the Correction Board to amend or delete a

report has the burden of "produc[ing] evidence that estab-

lishes clearly and convincingly" that the "presumption of

__________

4 The Correction Board operates within the Office of the Secre-

tary of the Army pursuant to 10 U.S.C. s 1552(a), which provides

that the secretary of a military department acting through a civilian

board "may correct any military record of the Secretary's depart-

ment when the Secretary considers it necessary to correct an error

or remove an injustice."

regularity" 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 also Frizelle v. Slater, 111

F.3d 172, 178 (D.C. Cir. 1997). Although this court has

jurisdiction to review decisions of the Correction Board,5 we

do so under an "unusually deferential application of the

'arbitrary or capricious' standard" of the APA. Kreis v.

Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir.

1989); see Cone, 223 F.3d at 793; Kidwell v. Department of

the Army, 56 F.3d 279, 286 (D.C. Cir. 1995). We review de

novo the district court's ruling, on cross-motions for summary

judgment, that the Correction Board did not act arbitrarily or

capriciously in this case. See Cone, 223 F.3d at 793.

Musengo offers three arguments in support of his conten-

tion that the Board acted unlawfully in denying his applica-

tion for correction. We consider these arguments below.

A

Musengo's first contention is that his rating should be

vacated because senior rater Barrow violated AR 623-105, at

p 4-16(b). That regulation states that a senior rater's evalua-

tion "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 approximate

a bell-shaped normal distribution pattern." Musengo con-

tends that because Barrow's evaluations did not approximate

a bell-shaped curve, the senior rater violated the governing

regulation and the Board acted arbitrarily in refusing to

delete the second-block rating from his OER.

We rejected the same argument in Cone. As we explained

in that case, although the regulations direct the senior rater

to base his or her ratings on the "premise" that evaluations of

an Army-wide representative sample will approximate a bell-

shaped curve, "they do not require adherence to a bell-shaped

__________

5 See Cone, 223 F.3d at 793; Frizelle, 111 F.3d at 176; Dickson v.

Secretary of Defense, 68 F.3d 1396, 1401 n.6 (D.C. Cir. 1995); 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)).

curve" for the evaluations of any individual rater's ratees in a

given rating period. Cone, 223 F.3d at 793. Moreover, even

if Barrow was lax in adhering to the regulation's premise, the

Army "anticipates, and compensates for, the fallibility of

individual raters by requiring that each rater's personal pro-

file ... be included in the OER of each officer he or she

reviews." Id. at 794. The profile permits reviewers "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), including his or her "tendency to inflate or

deflate ratings," id. p 9-7(f). Accordingly, as in Cone, it was

reasonable for the Correction Board to refuse to alter the

plaintiff's OER. See Cone, 223 F.3d at 794.6

B

Musengo's second contention is that the Correction Board's

refusal to vacate his rating was arbitrary and capricious in

light of Barrow's letter and deposition, which averred that

Barrow had made a mistake in issuing that rating: although

the senior rater had placed Musengo in the second block, he

stated that he had done so under the mistaken belief that the

second block was his center-of-mass. Musengo does not

dispute that under the regulations, OERs are presumed to

represent "the considered opinions and objective judgment of

the rating officials at the time of preparation," AR 623-105, at

p 5-32, and that he needed clear and convincing evidence to

overcome that presumption, id. p 9-7(a). But he contends

that Barrow's statements were sufficient to satisfy that regu-

latory standard.

__________

6 In support of his argument, Musengo cites an opinion of the

Court of Federal Claims, Richey v. United States, 44 Fed. Cl. 577

(1999), which remanded a Correction Board decision where a senior

rater's evaluations did not approximate a bell-shaped curve. We

are not certain whether Richey intended to announce a general rule

of law or merely to hold that the Board acted arbitrarily in light of

the specific facts of that case. However, even if Richey intended

the former, this court's decision in Cone necessarily controls the

disposition of the instant appeal.

There is, however, another regulation at issue here as well.

Paragraph 5-32(b)(2) of AR 623-105 provides that state-

ments from rating officials that they "did not intend to rate

[an officer] as they did" will "not be used to alter or with-

draw a report." The reason for this rule is that "statements

from rating officials 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. app. N, at p N-2(b)(3).

As we explained in Cone, the rule is based on the "under-

standing that raters may attempt to retract otherwise accu-

rate assessments when requested to do so by their disap-

pointed officers." Cone, 223 F.3d at 794. This regulation

was a reasonable basis for the Correction Board's decision to

reject Barrow's statements as insufficient to overcome the

presumption of regularity. See id.7

In rebuttal, Musengo contends that there is an exception to

p 5-32(b)(2) that permits reliance on post hoc statements in

the case of "information which was unknown or unverified

when the report was prepared," and which "is so significant

that it would have resulted in a higher or lower evaluation

had it been known or verified when the report was prepared."

AR 623-105, at p 5-32(c)(1)-(2). But it is clear in context that

this regulation applies to new information concerning the

quality of a ratee's performance, rather than to a rater's

sudden recognition of his own profile.8 To read the exception

__________

7 Musengo alludes to the fact that Barrow apparently rated nine

captains twice over a one-year period, see J.A. at 32 (OER page

containing Barrow's profile), and suggests that this may explain

why Barrow did not realize that his center-of-mass had changed

from the second to the top block. But the inclusion of those nine

reports did not change Barrow's center-of-mass. It would still be

at the top block even if we assumed that all nine were for top-block

captains and removed them from his profile. See id.

8 See also AR 623-105 app. N, at p N-2(b)(3) ("[C]laims by rating

officials that they did not intend to evaluate as they did will not,

alone, serve as the basis of altering or withdrawing an evaluation

report. Rating officials may, however, provide statements of sup-

port contending the discovery of new information that would have

as encompassing the latter would permit it to swallow the

rule against accepting after-the-fact testimonials.

In addition to the OER's presumption of regularity, Bar-

row's contemporaneous rating history provides further evi-

dence that he was aware that the top block was his center-of-

mass at the time he placed Musengo in the second block. As

the Correction Board noted, the OSRB determined that for

the five months preceding Musengo's contested OER, Barrow

"had rendered 23 OER's ... with 17 top block ratings and

only six second block ratings; and that the senior rater did 12

OER's the week of the applicant's OER with eight top block,

three second block, and one third block checks." ABCMR

Decision at 3.9 This series of contemporaneous ratings,

heavily weighted toward the top block, is further reason to

discount Barrow's suggestion that he was unaware that the

top block was his center-of-mass.10

__________

resulted in an improved evaluation had it been known at the time of

report preparations.").

9 Still further evidence is the fact that Barrow "restarted" his

profile immediately prior to the rating period covered by Musengo's

OER. ABCMR Decision at 2. Army regulations permit a senior

rater to restart his profile to ensure that his intended evaluations

are properly conveyed to selection boards and personnel managers.

AR 623-105, at p 3-12.1. The Correction Board concluded that the

fact that Barrow had recently restarted his profile undermined his

contention that he "was not aware that his center of mass was

within the top block at the time he rated the applicant." ABCMR

Decision at 4.

10 Musengo contends that the Correction Board should not have

considered this data because the OSRB opinion in which it was

contained was not included in the certified administrative record

filed with the district court by the Army. That failure of certifica-

tion, however, is not fatal. Cf. 5 U.S.C. s 706 (stating that in

reviewing agency action "due account shall be taken of the rule of

prejudicial error"). The Correction Board decision makes clear

that the OSRB opinion was part of the "evidence of record" before

the Board, ABCMR Decision at 2-3, as would be expected since the

purpose of Musengo's appeal to the Board after his rejection by the

OSRB was to seek review by "the next agency in the Army's

C

Finally, Musengo contends that this case is distinguishable

from Cone because of the different kind of relief he seeks:

Cone asked for an amendment of his OER, while Musengo

seeks only its removal from his military record.11 We did

note in Cone that the "knowledge that 'correcting' Cone's

grades would ultimately require us to reassess the relative

rankings of his entire cohort ... confirms the wisdom of

deferring to the reasonable judgment of the Correction

Board." Cone, 223 F.3d at 795. The difference in requested

remedy, however, cannot justify a different conclusion as to

whether Musengo's rating violated Army regulations. Nor

does that difference truly sidestep the "quagmire" of serial

reassessments that we sought to avoid in Cone. Id.

Were we to vacate Musengo's second-block rating because

Barrow wrongly thought the second block was his center-of-

mass, would we not have to do the same for the twenty other

captains Barrow rated in that block, all of whom could make

similar complaints? And if we did that, what would become

of those officers Barrow placed in the top block? Whatever

Barrow thought was his center-of-mass, he clearly thought

that those he placed in the top block were superior to those

he placed in the second, including Musengo.12 Yet with the

__________

redress system," AR 623-105, at p 9-5(f). Army regulations gave

Musengo the right to obtain a copy of the OSRB decision, id., and

he conceded at oral argument that he did obtain one. Moreover, at

no time during the numerous proceedings before the OSRB, Cor-

rection Board, district court, or this court has Musengo contended

that the data contained in the OSRB opinion is inaccurate.

11 Before the Correction Board, Musengo sought removal only of

the senior rater's numerical ranking. See ABCMR Decision at 2.

In this court, Musengo seeks removal of the entire OER. See

Compl. at 8.

12 The OSRB found that: "[T]he SR [senior rater] intended to

give the appellant [a] ranking lower than those officers designated

as top block. The SR may have lost control of his profile, however,

the fact remains he rendered both top block and second block

reports clearly rank ordering the officers he rated." See Musengo

second-block officers' ratings expunged, the top-block group

would lose the advantage of the comparison. Moreover, were

we to begin this game of falling dominos for those officers

rated by Barrow, we would open the door to similar chal-

lenges from officers rated by every other rater whose profile

did not match the bell-shaped curve that Musengo insists is

required by the regulations. That, of course, is precisely the

quagmire we refused to enter in Cone.

III

The Army does not dispute that James Musengo rendered

meritorious service. But there is no warrant for concluding

that his rating in the second block of the OER--which placed

him among the top 2-3% of all captains Army-wide but not

among the top 1%--underrated his performance. As in Cone,

223 F.3d at 796, Musengo's underlying complaint is that he

failed to get the full benefit of the inflated grading curve

employed by his senior rater, whose ratees, like the children

of Lake Wobegon, were apparently all above average.13 As

that failure does not render the Army's refusal to expunge

Musengo's record arbitrary or capricious, the district court's

grant of summary judgment is

Affirmed.

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Br. at 9-10 (quoting OSRB). Neither Musengo's brief, nor Bar-

row's letter in support of Musengo, disputes that Barrow intended

to rank Musengo below the officers he placed in the top block. See

J.A. at 14.

13 See Garrison Keillor, Lake Wobegon U.S.A. (Minn. Pub. Radio

2000), quoted at http: //prairiehome.org/catalog/catalog_014.htm.