Mueller, Douglas J. v. England, Gordon R.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 1, 2006 Decided May 11, 2007

No. 05-5396

DOUGLAS J. MUELLER,

APPELLANT

v.

DONALD C. WINTER,

SECRETARY OF THE NAVY AND

DEPARTMENT OF NAVY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv01711)

Guy J. Ferrante argued the cause and filed the briefs for

appellant.

Steven Ranieri, Assistant U.S. Attorney, argued the cause

pro hac vice for appellee. On the brief were Kenneth L.

Wainstein, U.S. Attorney at the time the brief was filed, and

Michael J. Ryan and Kevin K. Robitaille, Assistant U.S.

Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered

an appearance.

2

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Lieutenant Commander Douglas

Mueller challenges the Navy’s refusal to remove an assertedly

erroneous fitness report from his personnel record under both

the Privacy Act, 5 U.S.C. § 552a, and the Administrative

Procedure Act, 5 U.S.C. § 706. He also challenges the Navy’s

denial of his request to convene a special selection board under

10 U.S.C. § 628. The district court rejected each of Mueller’s

challenges, as do we.

I

Mueller is a Lieutenant Commander (LCDR) in the U.S.

Navy Judge Advocate General’s Corps. On November 16,

1999, Mueller received a fitness report (the “original fitness

report”) that was prepared by his “reporting senior,” Rear

Admiral (RADM) Donald Weiss. The report covered the period

between November 1, 1998 and October 31, 1999, and is the

principal subject of this appeal.

Fitness reports are prepared by reporting seniors annually

and cover a one-year period for officers of Mueller’s rank. See

Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10

at ¶¶ D-2, D-3. The reports are maintained for all Navy

personnel and are meant to “reflect their fitness for the service

and performance of duties.” Id. at Introduction ¶ 1 (internal

quotation marks omitted). Fitness reports “on officers . . . are

used for many career actions, including selection for promotion,

advanced training, specialization or subspecialization, and

responsible duty assignments.” Id.

3

The Bureau of Naval Personnel has promulgated detailed

instructions directing reporting seniors as to how to prepare

fitness reports. As is relevant to this appeal, blocks 33-39 on the

report form require the reporting senior to rank the officer with

respect to various “Performance Traits” -- for example,

“Professional Expertise” and “Teamwork” -- each on a scale

from 1.0 (“Below Standards”) to 5.0 (“Greatly Exceeds

Standards”), with 3.0 (“Meets Standards”) as the midpoint. See,

e.g., Joint Appendix (J.A.) 39. “For the majority of Navy

people, most of the trait grades should be in the 2.0 to 4.0

range.” BUPERSINST 1610.10 at ¶ A-4. The reporting senior

is also instructed to provide written comments on the officer’s

performance. Finally, the reporting senior must make a

recommendation regarding promotion by checking one of five

boxes, ranging from “Significant Problems” to “Early Promote.”

See id.; J.A. 40.

On the original fitness report, Admiral Weiss gave Mueller

marks of 3.0 (“Meets Standards”) in three categories, marks of

4.0 (“Above Standards”) in another three, and a “Not Observed”

mark in a final category, “Tactical Performance.” J.A. 39-40.

After commenting positively regarding Mueller, Weiss rated

him “Must Promote,” one level short of the highest promotion

recommendation. J.A. 40. Although the report was generally

quite favorable, it painted a somewhat less positive picture of

Mueller than both the report that directly preceded it and the one

that directly followed it.

Seventeen months after Mueller received the original fitness

report, the Fiscal Year 2002 (FY-02) promotion board met. On

April 17, 2001, the board -- which had before it the original

fitness report as well as fitness reports for prior and subsequent

periods -- did not select Mueller for promotion to the rank of

Commander.

4

On January 14, 2002, eight months after the FY-02 board

decided not to promote Mueller and more than two years after

Weiss submitted the original fitness report, Mueller sent Weiss

a letter, asking him for “support in modifying the marks” on the

original fitness report. J.A. 41. Navy regulations allow a

reporting senior to supplement an original fitness report with a

new one. See BUPERSINST 1610.10 at ¶ P-4. Although the

Navy generally will not accept a supplemental report submitted

more than two years after the ending date of the original fitness

report, id., a reporting senior may request, and the Board may

grant, a waiver of the filing deadline, id. at ¶ P-4(c). If a

supplemental report is submitted and accepted, it is stored in the

officer’s record together with the original report, which remains

unchanged unless the Navy alters or removes it as a result of an

appeal. Id. at ¶ P-8(a).

On March 7, 2002, Weiss submitted a supplemental report,

along with a request to waive the two-year filing deadline. The

supplemental report raised three of Mueller’s “Performance

Traits” marks (for “Professional Expertise,” “Mission

Accomplishment and Initiative,” and “Leadership”) from 4.0 to

5.0, and a fourth mark (for “Teamwork”) from 3.0 to 4.0.

Compare J.A. 47-48, with J.A. 39-40; see J.A. 45. It retained

Weiss’ previous “Comments on Performance,” but added the

directive “Promote to Commander now.” It also changed the

promotion recommendation from “Must Promote” to “Early

Promote,” the highest recommendation. Compare J.A. 48, with

J.A. 40. In an accompanying cover letter, Weiss wrote:

On reflection, the marks I assigned on the original

report when compared to the recorded comments on

LCDR Mueller’s performance and my recollection of

the officer’s performance were harsher than required.

Therefore, I wish to change the marks to more

5

accurately represent the performance of the officer . .

..

J.A. 45. The Navy honored Weiss’ request to waive the

deadline and filed Weiss’ supplemental report and cover letter

in Mueller’s personnel record, alongside the original fitness

report.

Mueller next petitioned the Board for Correction of Naval

Records (BCNR) to remove the original fitness report from his

personnel record and to replace it with the supplemental report,

pursuant to the Board’s statutory authority “to correct an error

or remove an injustice.” 10 U.S.C. § 1552(a)(1). Mueller

argued that the original fitness report “did not fairly reflect a

substantially accurate, complete and fair portrayal of [his]

performance during the [covered] period.” J.A. 35. Although

Mueller acknowledged that both the original and supplemental

reports were in his personnel record, he contended that “this

practice leaves a record that a board member could, and

probably would, construe as a flaw in [his] record,” and that the

promotion board “would likely surmise from their own

experience that the change was at [his] request and even if [the

board] did not view [his] prior report, that the prior entry was

negative.” J.A. 37.

On October 18, 2002, the Navy Personnel Command issued

an advisory opinion to the BCNR. The opinion noted that the

Navy “make[s] provisions for the submission of supplementary

material concerning fitness reports so reporting senior[s] may

clarify, amend, or correct a report already on file, not replace

[it]. The reporting senior has submitted and we have accepted

and filed the revised report.” J.A. 49. The opinion also stated

that “the petitioner has requested the replacement of his fitness

report to enhance his opportunities for promotion. We do not

support changes of record to improve [an] officer’s opportunity

6

for promotion or career enhancement.” Id. The opinion

concluded that Mueller did “not prove the [original fitness

report] to be unjust or in error,” id., and recommended that

Mueller’s “record remain unchanged,” J.A. 50.

Concurring “with the comments contained in the advisory

opinion,” the BCNR denied Mueller’s petition on January 21,

2003. J.A. 64. Because it was “unable to find specific

information to justify the reporting senior’s revision of

[Mueller’s] evaluation,” the BCNR concluded that “the evidence

submitted was insufficient to establish the existence of probable

material error or injustice.” Id.

On May 20, 2002, the same day that he petitioned the

BCNR to remove the original fitness report from his record,

Mueller also petitioned the Secretary of the Navy to convene a

special selection board, pursuant to 10 U.S.C. § 628(b), to

reconsider the promotion that the FY-02 promotion board had

denied him. As in his petition to the BCNR, Mueller stated that

the original fitness report was not accurate. He also noted that

the FY-02 promotion board had not had access to Weiss’

supplemental report, which was not submitted until after the FY-

02 board made its decision. Thus, Mueller claimed that the

action of the FY-02 board “involved a material error of fact,”

and that “the board lacked some material information for

consideration.” J.A. 67; see 10 U.S.C. § 628(b)(1) (authorizing

the Secretary to convene a special selection board if “the action

of the promotion board that considered the person . . . involved

material error of fact,” or “the board did not have before it for its

consideration material information”).

On January 21, 2003, the Secretary of the Navy denied

Mueller’s request for an FY-02 special selection board. The

Secretary found that Mueller “did not exercise due diligence” in

making sure that his record was complete before the FY-02

7

promotion board convened. J.A. 74. Thus, the Secretary

concluded, “a special promotion selection board is not

warranted.” Id.

On January 16, 2004, Mueller submitted a request for

reconsideration to the BCNR. The request asked that the Navy

both remove the original fitness report from his record and

convene “a special selection board for the FY-02 promotion

board.” J.A. 87; see J.A. 81-87. In support of his request,

Mueller submitted a sworn statement from Admiral Weiss,

stating that Weiss submitted the supplemental report “based

upon new information that [he] received from both LCDR

Mueller and from his direct supervisor,” and that this “new

information convinced [him] that the contested original fitness

report was inaccurate and needed to be corrected.” J.A. 88.

Weiss also stated that the “original fitness report contained

evaluation information based upon factual inaccuracies.” Id.

Weiss maintained that he “did not submit an amended fitness

report simply because it would enhance LCDR Mueller’s

opportunity for promotion or career,” but rather because he

“received new and material evidence concerning LCDR

Mueller’s performance of duties that convinced [him] the

original fitness report was in error at the time it was originally

submitted.” Id.

The BCNR denied Mueller’s renewed request to remove the

original fitness report from his record, stating that Mueller

“provided no new and material evidence or other matter not

previously considered,” and noting that Weiss’ sworn statement

“gives no specific information to explain his decision to give

[Mueller] a more favorable evaluation.” J.A. 108. The Board

also remained unconvinced that Mueller “could not have

submitted a letter to [Weiss] before the [FY-02] promotion

board met.” J.A. 109.

8

On January 16, 2004, the same day that he filed his request

for reconsideration with the BCNR, Mueller filed a request with

the Navy Personnel Command to remove the original fitness

report from his record pursuant to the Privacy Act, 5 U.S.C. §

552a, and the Navy’s Privacy Act regulations, Secretary of the

Navy Instruction (SECNAVINST) 5211.5D. The Navy denied

Mueller’s request on January 23, 2004, stating that record

amendments under the Privacy Act “are limited to the correction

of factual matters, not matters of opinion such as performance

appraisals, grades and comments by the reporting senior.” J.A.

111. Mueller appealed, and on August 17, 2004, the Secretary

of the Navy denied his appeal.

Thereafter, Mueller filed a complaint in the United States

District Court for the District of Columbia. The complaint

alleged that: (1) the Navy erred in failing to remove the original

fitness report from Mueller’s record pursuant to the Privacy Act;

(2) the BCNR’s denial of his request to remove the report was

arbitrary and capricious under the Administrative Procedure Act

(APA), 5 U.S.C. § 706(2)(A); and (3) the Navy’s refusal to

convene a special selection board for FY-02 was arbitrary,

capricious, and unsupported by substantial evidence under 10

U.S.C. § 628(g). The district court granted summary judgment

in favor of the Navy on all counts. See Mueller v. England, 404

F. Supp. 2d 51 (D.D.C. 2005). This appeal followed.

II

We begin with Mueller’s claim that the Navy violated the

Privacy Act by failing to remove the original fitness report from

his personnel record. The Privacy Act provides that “[e]ach

agency that maintains a system of records shall . . . maintain all

records which are used by the agency in making any

determination about any individual with such accuracy,

relevance, timeliness, and completeness as is reasonably

9

necessary to assure fairness to the individual in the

determination.” 5 U.S.C. § 552a(e)(5). It permits an individual

to “request amendment of a record pertaining to him” and

requires the agency either to “make any correction” to the record

or to “inform the individual of its refusal.” Id. § 552a(d)(2). If

the agency refuses to amend the record, the Act authorizes the

individual to bring an action in district court. Id. § 552a(g)(1).

The Privacy Act generally directs the district court to

review claims challenging an agency’s refusal to correct records

de novo. 5 U.S.C. § 552a(g)(2)(A); see White v. Office of Pers.

Mgmt., 787 F.2d 660, 663 (D.C. Cir. 1986). This court, in turn,

reviews a district court’s “grant of summary judgment de novo,

applying the same standard as the district court.” McCready v.

Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006). The government

contends that courts should apply a more deferential standard of

review to a military department’s Privacy Act determination

regarding military records.1 We have no need to address that

contention, however, as Mueller’s claim fails even under the de

novo standard.

1

In support of this contention, the government cites Cargill v.

Marsh, 902 F.2d 1006 (D.C. Cir. 1990), in which we affirmed the

dismissal of an Army officer’s suit to amend his military records under

the Privacy Act, because he had failed to exhaust his administrative

remedies before the Army Board for Correction of Military Records.

In so holding, we noted that permitting the plaintiff “to obtain de novo

judicial review of his challenge to the Army’s interpretation of its

regulation governing tuition reimbursement simply by choosing to

seek amendment of his records under the Privacy Act, before the

Army Privacy Review Board, rather than by proceeding before the

Correction Board, is inconsistent with the heightened deference

Congress intended the courts to accord determinations of the

Correction Board in proceedings under 10 U.S.C. § 1552(a).” Id. at

1008.

10

It is well-established that, “generally speaking, the Privacy

Act allows for correction of facts but not correction of opinions

or judgments.” McCready, 465 F.3d at 19 (internal quotation

marks omitted); see Kleiman v. Dep’t of Energy, 956 F.2d 335,

337-38 (D.C. Cir. 1992) (“[T]he Privacy Act allows for

amendment of factual or historical errors. It is . . . not a vehicle

for amending the judgments of federal officials or . . . other[s] .

. . as those judgments are reflected in records maintained by

federal agencies.” (internal quotation marks omitted)). If a

subjective judgment is “based on a demonstrably false” factual

premise, however, the Privacy Act compels the agency to

correct or remove the judgment from the complaining

individual’s record. White, 787 F.2d at 662; see R.R. v. Dep’t of

the Army, 482 F. Supp. 770, 774 (D.D.C. 1980).

The original fitness report prepared by Admiral Weiss is a

classic statement of an author’s subjective judgment about an

individual’s performance. In the contested portions of the

report, Weiss offers nothing more than his appraisal of Mueller’s

relative performance in a variety of categories during the

covered period, as well as his recommendation regarding

promotion. See White, 787 F.2d at 662 (describing a superior’s

performance evaluation as an opinion or judgment for Privacy

Act purposes); see also Hewitt v. Grabicki, 794 F.2d 1373, 1378

(9th Cir. 1986). Although the ratings in the supplemental report

are different from those in the original, they are still judgments

-- different judgments, but judgments nonetheless.

Mueller argues that the original fitness report is subject to

correction under the Privacy Act because the facts upon which

it was based “were expressly and emphatically discredited by

RADM Weiss -- the very person who had erroneously relied

upon them in the first place.” Plaintiff’s Br. 21. To be sure,

Weiss did state that the supplemental report was “based upon

new information that [he] received from both LCDR Mueller

11

and from his direct supervisor,” and that this “new information

convinced [him] that the contested original fitness report was

inaccurate and needed to be corrected.” J.A. 88. Weiss also

stated that the “original fitness report contained evaluation

information based upon factual inaccuracies.” Id. But Weiss

never described the “new information” or “factual inaccuracies”

to which he referred. Nor is there such a description in

Mueller’s briefs in either this court or the district court. See also

Oral Arg. Recording at 8:00 (statement by Mueller’s counsel

that he does not know what new information caused Weiss to

change his mind). There is, therefore, no way to determine

whether the inaccuracies Weiss discerned were errors of fact or

opinion.

Acknowledging that Weiss failed to state the nature of the

new information he received, or of the inaccuracies he discerned

in his original report, Mueller’s brief states:

[I]t is entirely possible that RADM Weiss could not

articulate reasons for his actions. That is because

subjective evaluations are necessarily premised on

“facts” of all shapes and sizes. Some are objective and

identifiable, like a person’s weight or score on a test.

Others are more subliminal and indefinable, like

perceptions and impressions.

Plaintiff’s Br. 18. This description of what underlay Weiss’

different evaluations may well be correct. But even if it is, it

dooms Mueller’s Privacy Act claim. As we have previously

held, “[w]here a subjective evaluation is based on a multitude of

factors, . . . and there are various ways of characterizing some of

the underlying events, . . . it is proper [for an agency] to retain

and rely on it.” White, 787 F.2d at 662. Accordingly, we affirm

the district court’s grant of summary judgment to the Navy on

the Privacy Act claim.

12

III

We next consider Mueller’s challenge, brought under the

APA, 5 U.S.C. § 706(2)(A), to the BCNR’s denial of his request

to have the original fitness report removed from his record. The

Secretary of a military department, acting through a civilian

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.” 10 U.S.C. § 1552(a).

Although the federal courts have “jurisdiction to review

decisions of [military] Correction Board[s], we do so under an

‘unusually deferential application of the “arbitrary or

capricious” standard’ of the APA.” Musengo v. White, 286 F.3d

535, 538 (D.C. Cir. 2002) (quoting Kreis v. Sec’y of the Air

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

Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). “This deferential

standard is calculated to ensure that the courts do not become a

forum for appeals by every [officer] dissatisfied with his or her

ratings, a result that would destabilize military command and

take the judiciary far afield of its area of competence.” Cone,

223 F.3d at 793. This court reviews de novo the district court’s

ruling that the BCNR did not act arbitrarily or capriciously in

this case. Musengo, 286 F.3d at 538.

Mueller contends that the BCNR’s decision to retain the

original fitness report in his record was arbitrary because Weiss’

supplemental report and subsequent sworn statement establish

that it was inaccurate. As noted in Part II, however, Admiral

Weiss did not identify a single factual inaccuracy in the original

report. There was therefore nothing arbitrary about the BCNR’s

determination that it was “unable to find specific information to

justify the reporting senior’s revision of [Mueller’s] evaluation,”

and nothing unreasonable about its conclusion that “the evidence

submitted was insufficient to establish the existence of probable

material error or injustice.” J.A. 64.

13

Mueller insists that, even if Weiss’ evaluations were

subjective, his submission of a supplemental report establishes

that his original evaluation was incorrect. Mueller argues that

“Weiss[,] who actually generated the report, admitted its

inaccuracy.” Plaintiff’s Br. 16. This “inaccurate” report,

Mueller contends, caused him harm because it “portray[ed] him

as a mediocre officer whose performance was in decline when,

in fact, he was a stellar officer whose performance was as top-

notch as always.” Id. at 17.

Under Navy regulations, the BCNR “relies on a

presumption of regularity to support the official actions of

public officers and, in the absence of substantial evidence to the

contrary, will presume that they have properly discharged their

official duties.” SECNAVINST 5420.193 at § 3(e)(2). As we

explained in Cone v. Caldera, the military generally takes the

position that post-hoc reevaluations by reporting seniors are

insufficient to overcome that presumption of regularity, based

on the “understanding that raters may attempt to retract

otherwise accurate assessments when requested to do so by their

disappointed officers.” 223 F.3d at 794. We have repeatedly

reaffirmed the reasonableness of that position. See id.;

Musengo, 286 F.3d at 539-40. And that is the position the

BCNR took here, adopting the view of the Navy Personnel

Command that it should “not support changes of record to

improve an[] officer’s opportunity for promotion or career

enhancement.” J.A. 49; see J.A. 64 (BCNR decision,

“substantially concurr[ing]” in the Navy Personnel Command’s

view).

In this case, the Navy accepted Weiss’ late-filed

supplemental fitness report and, in accordance with Navy

regulations, retained both the original and the supplemental

report (as well as Weiss’ cover letter explaining the reasons for

the supplemental report) in Mueller’s record for future

14

promotion boards to consider. See BUPERSINST 1610.10 at ¶

P-8(a); see also J.A. 49 (Navy Personnel Command advisory

opinion); J.A. 63 (Mueller statement acknowledging that this is

Bureau of Naval Personnel practice). Where the BCNR has no

more evidence than it had here to determine whether a reviewer

changed his report out of sympathy for a disappointed officer,

there is nothing arbitrary about retaining both reports and

permitting future promotion boards to give each report the credit

they believe it deserves. Mueller may be right that future

promotion board members “would likely surmise from their own

experience that the change was at [the subject officer’s]

request,” J.A. 37, but here such a surmise would be correct. It

likewise may be true that retaining both reports “leaves a record

that a board member could, and probably would, construe as a

flaw in [the officer’s] record.” Id. But this court lacks the

expertise, not to mention the authority, to substitute its own

judgment about the validity of such a construction for that of

either the BCNR or a future promotion board member.

IV

Finally, we address Mueller’s challenge to the Navy’s

refusal to convene a special selection board for FY-02. The

Secretary of a military department is authorized, upon a finding

of “material unfairness” to a person passed over for promotion

by a regularly-scheduled promotion board, to “convene a special

selection board . . . to determine whether that person . . . should

be recommended for promotion.” 10 U.S.C. § 628(b)(1). A

federal court has authority to “review a determination by the

Secretary of a military department . . . not to convene a special

selection board.” Id. § 628(g). A court “may set aside the

Secretary’s determination,” however, “only if the court finds the

determination to be,” inter alia, “(i) arbitrary or capricious [or]

(ii) not based on substantial evidence.” Id.

15

The district court held, and the government now argues, that

since (as we have decided above) neither the Privacy Act nor the

APA requires the Navy to remove the original fitness report

from Mueller’s record, a special selection board “would have

nothing new or different to consider, and this claim is moot.”

Mueller, 404 F. Supp. 2d at 55 n.3. But this misapprehends

Mueller’s argument. The statute allows the Secretary to

convene a special selection board if the original promotion

“board did not have before it for its consideration material

information,” 10 U.S.C. § 628(b)(1)(B), and provides that, once

convened, the special selection board “shall consider the record

of the person whose name was referred to it for consideration as

that record, if corrected, would have appeared to the board that

considered him,” id. § 628(b)(2). As Mueller notes, the FY-02

promotion board did not have access to Weiss’ supplemental

report because it was not submitted until after the FY-02 board

made its decision. Hence, if his request for a special selection

board were granted, although the board would still have the

original fitness report, it would also have something new to

consider: the more favorable supplemental report.

Mueller’s claim is therefore not moot. Nonetheless, it is

without merit. Navy regulations state that a “special selection

board will not be convened to consider any officer who, through

the exercise of reasonable diligence, might have discovered and

corrected the error or omission in the official record prior to

convening the promotion selection board that considered, but

did not select the officer.” SECNAVINST 1401.1B at ¶ 6(b).

The Navy found that Mueller did not meet this due diligence

requirement, and therefore declined his request to convene a

special selection board.

In concluding that Mueller failed to exercise reasonable

diligence in trying to correct his record before the FY-02

promotion board met, the Navy relied on the following facts:

16

Although Admiral Weiss issued the original fitness report on

November 16, 1999 -- well in advance of the FY-02 promotion

board that met on April 17, 2001 -- Mueller made no

documented effort to correct his record until his January 14,

2002 letter to Weiss, eight months after the board convened.

Indeed, Mueller’s correspondence with the FY-02 board did not

suggest that he was attempting to correct his record. See J.A.

73-74. And this was so notwithstanding the fact that he received

another fitness report from Weiss six months after the one in

question, still well before the FY-02 board met. Although

Mueller points to other evidence indicating that he tried, but

failed, to connect with Weiss due to their busy schedules, the

Navy considered and rejected that argument. See J.A. 109

(“While the reporting senior’s letter of 16 October 2003

indicates his late submission of the supplemental report was due

to the inability of you and the reporting senior to ‘connect,’ the

[BCNR] was not persuaded that you could not have submitted

a letter to him before the promotion board met.”).

There may have been sufficient evidence for the Navy to

conclude that Mueller satisfied the due diligence requirement.

But it was also reasonable for the Navy to reach the opposite

conclusion. That being the case, we cannot find the Board’s

refusal to convene a special selection board arbitrary, capricious,

or unsupported by substantial evidence. See, e.g., Morall v.

DEA, 412 F.3d 165, 176 (D.C. Cir. 2005) (“In applying the

substantial evidence test, we have recognized that an agency

decision may be supported by substantial evidence even though

a plausible alternative interpretation of the evidence would

support a contrary view.” (internal quotation marks omitted));

Air Canada v. Dep’t of Transp., 148 F.3d 1142, 1153 (D.C. Cir.

1998) (holding that, although the petitioners’ position “may be

reasonable, there is nothing unreasonable about the

Department’s alternative view”).

17

V

For the foregoing reasons, the district court’s grant of

summary judgment in favor of the Navy is

Affirmed.