Manago v. United States

In the United States Court of Federal Claims

)

MARIO A. MANAGO, )

)

Plaintiff, )

) No. 22-629C

v. )

) (Filed: February 21, 2023)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

Carol Anne Thompson, The Federal Practice Group, Washington, D.C., for Plaintiff.

Patrick Angulo, Trial Attorney, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., with whom were William J. Grimaldi, Assistant

Director, Patricia M. McCarthy, Director, and Brian M. Boynton, Principal Deputy Assistant

Attorney General, for Defendant. Maj. Scott W. Medlyn, Military Personnel Litigation Branch,

Civil Law and Litigation Domain, United States Air Force, Joint Base Andrews, MD, Of

Counsel.

OPINION AND ORDER

KAPLAN, Chief Judge.

This military pay case is before the Court on the government’s motion to dismiss and the

parties’ cross-motions for judgment on the administrative record. The Plaintiff, Mario A.

Manago, was administratively separated from the Air Force in 2017 as a consequence of a

demotion that reduced him in rank from an E-5 Non-commissioned Officer to an E-4 Senior

Airman. The Air Force based his demotion on a series of letters of reprimand (“LORs”) and a

letter of counseling (“LOC”). Mr. Manago, who is African American, characterizes the LOC,

LORs, and administrative demotion as unjustified and motivated by racial animus.

Mr. Manago’s appeal of his demotion to the Air Force Board for the Correction of

Military Records (“AFBCMR” or “the Board”) was unsuccessful. The Board concluded that the

administrative actions were justified in light of his conduct, and that he had not proven by

preponderant evidence that he was a victim of racial discrimination.

In this action, Mr. Manago contends that the Board’s decision upholding his

administrative demotion was arbitrary, capricious, and unsupported by substantial evidence. He

alleges that the discipline imposed on him was unduly harsh, and that, in considering his race

discrimination allegations, the Board gave insufficient weight to certain public reports

identifying racial disparities in the military justice system. Mr. Manago has also filed a motion to

supplement the administrative record with two additional reports authored by the Air Force’s

Inspector General (“IG”) and the transcript of a congressional hearing that discussed racial

disparities in the administration of discipline in the military services.

The government, for its part, has moved to dismiss the case pursuant to Rule 12(b)(1) or,

in the alternative, Rule 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”). It

contends that the Court lacks jurisdiction to consider claims of racial discrimination in the

imposition of discipline by the Air Force and/or that Mr. Manago’s claims that the letters of

reprimand and letter of counseling he received were unwarranted are not justiciable.

Oral argument was heard on the pending motions on February 9, 2023. For the reasons

set forth below, the government’s motion to dismiss and Plaintiff’s motion to correct and/or

supplement the record are DENIED. Plaintiff’s motion for judgment on the administrative

record is DENIED, and the government’s cross-motion for judgment on the administrative

record is GRANTED.

BACKGROUND

I. Facts

Plaintiff Mario A. Manago enlisted in the Air Force in June 2004 and served as an active-

duty member until he was involuntarily discharged on June 24, 2017. Admin. R. (“AR”) 41, ECF

No. 6. He obtained the rank of Staff Sergeant in 2009, AR 5, and in 2011, Mr. Manago was

transferred to McGuire Air Force Base, where he served in three different commands: (1) the

817th Global Mobility Squadron from September 2011 to January 2015; (2) the 621st

Contingency Response Squadron from January 2015 to February 2016; and (3) the 305th Aerial

Port Squadron (“305th APS” or “305th”) from February 2016 until June 2017, AR 43.

A month after he transferred to the 305th, Mr. Manago received the first in a series of

disciplinary letters that ultimately formed the basis for his reduction in rank which led to his

involuntary separation. First, on March 16, 2016, his superior officer, Senior Master Sergeant

(“SMSgt”) Ahlstrom, issued him an LOC because Mr. Manago had allowed the balance on his

Government Travel Card to become more than thirty days past due. AR 271–72 (Mar. 16, 2016

LOC). In the LOC, SMSgt Ahlstrom advised that the overdue balance violated Air Force

regulations, that as a non-commissioned officer he was expected to “set the standard” for the

Airmen in his charge, and that his “failure to take care of the delinquent bill is in direct violation

of the responsibilities that have been placed before [him] and will not be tolerated.” AR 271 ¶ 2.

On May 24, 2016, SMSgt Ahlstrom issued Mr. Manago an LOR that arose out of an

investigation finding that, on May 19, 2016, Mr. Manago “acted in a disrespectful manner to a

retired Senior Non-Commissioned Officer” in violation of Air Force standards. AR 262 ¶ 1.

Specifically, according to the retired Senior Officer, while preparing for the boarding of a plane

at the 305th Passenger Terminal, he told Mr. Manago that he did not want to get in the line until

it became shorter. AR 265 ¶ 4. Mr. Manago allegedly responded with words to the effect that the

Senior Officer would “get in line because I told you to.” Id. The Senior Officer filed an official

complaint regarding his treatment. Id. ¶ 5.

No one on the scene heard the interaction between Mr. Manago and the Senior Non-

commissioned Officer because, in SMSgt Ahlstrom’s assessment, the other passengers were

2

gathered at the customer service counter away from the alleged conversation. AR 80–81

(Ahlstrom Test. at 7:15–16, 7:25–8:5). SMSgt Ahlstrom nonetheless upheld the LOR over Mr.

Manago’s protests. AR 263. He credited the Officer’s allegations regarding Mr. Manago’s

remarks, because the Officer had “stayed back to address this issue even though he could have

gotten onto a different flight to his destination.” AR 80 (Ahlstrom Test. at 7:19–22).

A little more than a month later, on June 28, 2016, Mr. Manago was again reprimanded.

This time, the reprimand was for being late to appear at his place of duty on both June 2 and June

3, 2016. AR 254–55. On this occasion, Mr. Manago admitted to committing the infractions and

apologized for his “lack of leadership and time management.” AR 256 ¶ 4; see also id. ¶ 2

(Manago’s July 1, 2016 Mem. stating, “I was wrong and I accept responsibility for my actions”).

Apparently, however, at a meeting between Mr. Manago and Lieutenant Colonel (“Lt. Col.”)

Flack held the day the reprimand was issued, Lt. Col. Flack informed him that he was

considering creating a Control Roster/Unfavorable Information File (“UIF”) regarding Mr.

Manago’s infractions. AR 95 ¶ 2. 1 In his response to the LOR, Mr. Manago expressed concern

about the effect of a UIF on his career and advised that it was not necessary to take this

additional step to get him to comply with governing standards and directives. AR 256–57.

Notwithstanding his request, within a few days a UIF file was established, and Mr.

Manago was placed on a control roster. AR 480 (“[Mr. Manago] received a[n] LOR, dated 28

June 2016[,] and this item was used to establish [a UIF].”). In response, on July 22, 2016, Mr.

Manago submitted a memorandum to the 305th APS, complaining about the administrative

actions taken against him. AR 95–96 (July 22, 2016 Mem. for 305th APS). With a subject line of

“Progressive Discipline,” Mr. Manago expressed concerns “about the level of adverse

administrative action . . . issued . . . due to the lack of progressive discipline imposed,” as well as

an allegedly improper use against him of a “Personal Information File” compiled during a

previous assignment. Id.

Unable to secure a satisfactory response from his superiors, Mr. Manago scheduled a

meeting with Lt. Col. Eric Quidley, Commander of the 305th, at 10 a.m. on August 12, 2016. AR

108 ¶ 8 (Nov. 22, 2016 Manago Mem.). On the day of the scheduled meeting, however, the Staff

Sergeant supervising Mr. Manago’s duty station was concerned about being short-staffed. AR

106 (Aug. 12, 2016 Mem. for Rec. by SSgt Markis McCollum). At morning stand up that day, he

advised the service members on the shift that the day would be “tight” and that they should not

attend any personal meetings. Id. At 9:10 a.m., Mr. Manago’s civilian supervisor told him of the

busy day ahead, id., and, ten minutes later, told him that he would have to reschedule his 10 a.m.

meeting with Lt. Col. Quidley, AR 105 ¶ 1 (Aug. 16, 2016 Mem. by John Yesensky, Foreman,

Ramp Service).

At 9:30 a.m., Mr. Manago contacted Chief Master Sergeant (“CMSgt”) Mitchell Pykosz,

requesting to postpone the 10 a.m. meeting with Lt. Col. Quidley. AR 104 ¶ 1 (Aug. 18, 2016

1

A UIF is “an official record of unfavorable information about an individual.” Air Force

Instruction (“AFI”) 36-2907, ch. 1.1.2 (updated Oct. 14, 2022), https://static.e-

publishing.af.mil/production/1/af_a1/publication/dafi36-2907/dafi36-2907.pdf. It tracks

“administrative, judicial, and non-judicial actions” taken against a service member. Id.

3

Pykosz Mem.). CMSgt Pykosz advised Mr. Manago that he would not do so, that the meeting

was mandatory, and that he needed to be there at 10 a.m. Id. Notwithstanding these instructions,

Mr. Manago arrived at the meeting six minutes late, i.e., 10:06 a.m. AR 108 ¶ 10 (Nov. 22, 2016

Manago Mem.).

On August 23, Lt. Col. Quidley told Mr. Manago that he was considering imposing an

Article 15 non-judicial punishment on him based on his late arrival at the August 12, 2016

meeting. Id. Mr. Manago declined Article 15 non-judicial punishment and instead demanded trial

by court-martial. AR 108 ¶ 11, 393. 2 Accordingly, the charges arising out of his failure to arrive

at the August 12, 2016 meeting on time were referred to a special court-martial on October 13,

2016. AR 38–39 (Court-Martial Charge Sheet). Ultimately, on May 2, 2017, Mr. Manago was

convicted for his late arrival at the August 12 meeting, and a reprimand was imposed. AR 392–

93.

In the meantime, on September 15, 2016, an incident occurred that resulted in the

issuance of another LOR. According to a Memorandum for the Record that Mr. Manago

prepared that day, he had experienced a conflict with a “Mr. Jones,” who was apparently a

coworker. AR 111–12 (Sept. 15, 2016 Manago Mem. for Rec.). In the memorandum, Mr.

Manago stated that Mr. Jones had berated him for continuing to operate his forklift while the

national anthem was playing. AR 111 ¶ 2. Mr. Manago stated that he did not hear the anthem

because of the noise from the forklift and the ear plugs he was wearing. Id. ¶¶ 1–2. Then, Mr.

Manago noted, “in a very loud and judgmental manner [Mr. Jones] began to question [Mr.

Manago’s] experience about safe forklift operations.” Id. ¶ 3. Apparently, Mr. Jones challenged

Mr. Manago’s understanding of safety regulations because he had failed to turn the engine of his

forklift off when he left his seat to move some dunnage that was in front of his tire. Id.

Mr. Manago reported the incident to his command, registering his concern about “the

lack of respect and professional courtesy displayed,” which he said was his “second negative,

disrespectful, and unprofessional interaction with Mr. Jones.” AR 111–12 ¶ 4. The

memorandum, however, did not have its intended effect. Instead, it led to an investigation which

2

Article 15 non-judicial punishment is a statutorily established non-criminal penalty. Moore v.

United States, 956 F.2d 1172, 1172 n.1 (Fed. Cir. 1992) (unpublished table decision) (citing 10

U.S.C. § 815). It “is the least formalized method of military discipline, conducted personally by

an accused’s commanding officer,” instead of before a military court. Id. (citing Dumas v.

United States, 620 F.2d 247, 251 (Ct. Cl. 1980)). As such, it is “an informal proceeding in which

only limited penalties may be imposed upon a finding of guilt,” Martinez v. United States, 333

F.3d 1295, 1299 (Fed. Cir. 2003), for “minor offenses,” 10 U.S.C. § 815(b) (listing potential

disciplinary punishments for Article 15).

A service member can, however, “demand[] trial by court-martial in lieu of [an Article 15 non-

judicial] punishment,” like Mr. Manago did here. 10 U.S.C. § 815(a); see also Dumas, 620 F.2d

at 251 (noting that failure to demand trial by court-martial “is not a plea of guilty to the described

offense(s)” (quoting Air Force Regulation 111-9(6)(h) (July 24, 1974))). This, in essence, gives

the commanding officer three options: to proceed with the court-martial, drop the issue entirely,

or give a lesser punishment, such as a Letter of Reprimand.

4

disclosed that Mr. Manago had indeed violated Air Force safety rules, as Mr. Jones had

suggested. AR 318 ¶ 1. Mr. Manago then received an LOR for failing to double chock one of the

forklift’s tires while it was unattended. AR 318–19 (Sept. 28, 2016 LOR).

Finally, in December 2016, Mr. Manago received yet another LOR for two more

instances of tardiness, both of which occurred in November 2016. AR 249–50 (Dec. 21, 2016

LOR). The first occurred on November 25, 2016, when he reported late for a shift that was

originally supposed to begin at 6:30 a.m. AR 249 ¶ 1. The LOR states that he reported that day at

8 a.m. Id. In his response to this LOR, Mr. Manago stated that others on the shift had received

text messages from their supervisor to report at 7:30 a.m. that day. AR 251 ¶ 2 (Dec. 29, 2016

Manago Mem.). According to Mr. Manago, he texted the supervisor at 5:54 a.m. to alert her that

he would be arriving after 6:30 a.m. Id. Mr. Manago then claims he arrived at 7:00 a.m. at which

time his superior “notified [him that] she had authorized late reporting by an hour” (i.e., at 7:30

a.m.). Id. Nonetheless, Mr. Manago did not deny that he did not arrive until 8 a.m., as the LOR

stated. See generally AR 251–52.

The second incident described in the December 2016 LOR occurred five days later, on

November 30, when Mr. Manago arrived at 7:00 a.m. instead of 6:30 a.m. as scheduled. AR 249

¶ 1; see also AR 251 ¶ 3. Mr. Manago did not dispute that he arrived at 7:00 a.m. but claimed

that he had received authority to “flex” his hours and schedule so long as he reached twelve

hours per day. AR 251 ¶ 3.

In the December 2016 LOR, Lt. Col. Quidley noted that the two infractions appeared to

be “the fourth and fifth times since [June 2, 2016] in which [Mr. Manago] absented . . . from

[his] place of duty without authority or failed to go to [his] appointed place of duty at the time

prescribed.” AR 249 ¶ 2. He advised Mr. Manago that “[b]y reporting late to duty on multiple

occasions, [he] ha[d] failed to comply with one of the most basic Noncommissioned Officer

responsibilities; that is[,] to ‘epitomize excellence and lead by example through exhibiting

professional behavior.’” Id. His behavior, according to Lt. Col. Quidley, “set a poor example for

subordinates and peers alike.” Id.

On January 11, 2017, Lt. Col Quidley recommended that Staff Sergeant Manago receive

an administrative reduction to the rank of Senior Airman. AR 114–16 (Admin. Demotion of

Airmen Mem.). He based the recommendation on the LORs issued on December 21, 2016,

September 28, 2016, June 28, 2016, and May 24, 2016, as well as the March 16, 2016 LOC. AR

116. He did not cite the incident in August 2016 where Mr. Manago was six minutes late to a

meeting; charges arising out of that incident were still pending in the court-martial proceedings.

See id.; AR 392–93.

Mr. Manago was reduced in rank effective February 24, 2017. AR 241. On March 6,

2017, he appealed the demotion, AR 350–53 (Admin. Demotion Appeal), and was unsuccessful,

AR 8 (noting that Mr. Manago appealed the administrative demotion, and “the appellate

authority denied [his] appeal” on March 17, 2017). On June 24, 2017, Mr. Manago was

involuntarily separated from the Air Force. AR 41–42 (Certificate of Release or Discharge From

Active Duty). The separation was mandatory because Mr. Manago reached his High Year of

5

Tenure (“HYT”) for the rank of Senior Airman, the position to which he had been demoted. See

AR 4–5, 698. 3

II. Petition to the AFBCMR

On June 21, 2020, some three years after his involuntary separation, Mr. Manago

petitioned the AFBCMR to challenge his administrative demotion. AR 19–29 (AFBCMR

Petition). In his petition he argued: (1) that his demotion circumvented the Uniform Code of

Military Justice in violation of AFI 36-2502; (2) that the demotion was the result of “erroneous

uses of LORs, retaliation, and apparent discrimination”; (3) that his treatment at the 305th APS

was consistent with reports of racial discrimination in the Air Force; and (4) that he was qualified

to serve as a Staff Sergeant, his pre-demotion position. AR 25–28.

The Air Force Personnel Center (“AFPC/JA”) provided the Board with an advisory

opinion regarding Mr. Manago’s petition. AR 397–401. It opined that the demotion did not

violate AFI 36-2502, AR 398, and that Mr. Manago’s petition and record did not “provide

sufficient evidence to indicate [that his] demotion was unjust due to racial discrimination,” AR

401. The AFPC/JA noted that the “findings of racial discrimination” upon which Mr. Manago

relied, which were prepared by Protect Our Defenders (“POD”), an advocacy group, and by the

Government Accountability Office (“GAO”), had revealed disparities among Black and white

service members with respect to the number who were investigated and tried at courts-martial,

but that neither POD nor GAO determined that the disparities were the result of discrimination.

Id. The AFPC/JA observed that the record contained “no evidence other than the GAO . . . and

POD report[s], which [made] no causal findings,” to indicate that Mr. Manago’s demotion was

motivated by racial animus. Id. It therefore recommended that the Board deny the petition. AR

398–401.

The Board concurred with the AFPC/JA and denied Mr. Manago’s petition. AR 4–13. It

explained that “the reasons for the LORs issued by [Mr. Manago’s] superintendent and flight

commander were valid” and they were “issued in an attempt to correct [Mr. Manago’s]

behavior.” AR 12 ¶ 3. The Board also concurred “with [the] AFPC/JA’s assessment that [Mr.

Manago] ha[d] provided no evidence [of racial discrimination] other than the GAO . . . and POD

report[s], which ma[de] no causal findings even for the service-level disparities, to indicate racial

discrimination contributed to his demotion.” Id.

III. The Present Action

On June 7, 2022, Mr. Manago filed his complaint with this court, invoking jurisdiction

under the Tucker Act and Military Pay Act for wrongful discharge. Compl. ¶ 6 (citing 28 U.S.C.

§ 1491(a) and 37 U.S.C. § 204), ECF No. 1. He alleges that “[t]he AFBCMR’s determination

3

HYT refers to the maximum number of years a person can serve in the Air Force at any given

rank. See AFI 36-3203, Attach. 1 (updated Feb. 23, 2021), https://static.e-

publishing.af.mil/production/1/af_a1/publication/afi36-3203/afi36-3203.pdf (defining HYT as

“[a] year point at which the Air Force determines an enlisted Airman is ineligible for

reenlistment and extension of enlistment due to grade and length of service”).

6

that there was insufficient evidence to suggest that Plaintiff’s administrative reduction was a

result of racial discrimination was arbitrary, capricious, and unsupported by evidence.” Id. ¶ 25.

The LORs issued against him, he argues, “should have been handled through counseling or other

progressive forms of discipline.” Id. ¶ 26. Further, Mr. Manago alleges, “[t]he repeated use of

disproportionate punishments was a direct result of racial bias against Plaintiff, an African

American service member.” Id. He contends that “[s]ubstantial evidence existed to suggest that

Plaintiff’s reduction in rank was the direct result of racial bias against African Americans within

the military” and that “[t]he AFBCMR’s decision to ignore the weight of this evidence and

ultimately deny Plaintiff’s application was arbitrary, capricious, and unsupported by evidence.”

Id. ¶ 30.

On October 21, 2022, Mr. Manago filed a motion for judgment on the administrative

record (“MJAR”) and to supplement the administrative record. See Pl.’s Mot. for J. on the AR

and Mot. to Suppl. [hereinafter “Pl.’s Mot.”], ECF No. 10. The government filed its motion to

dismiss pursuant to RCFC 12(b)(1) and 12(b)(6) or, in the alternative, cross-MJAR on December

20, 2022. See Def.’s Mot. to Dismiss and Cross-MJAR [hereinafter “Def.’s Mot.”], ECF No. 11.

Mr. Manago filed his reply on January 20, 2023. See Pl.’s Reply, ECF No. 14. The Court held

oral argument on February 9, 2023. See Order Setting Oral Arg., ECF No. 15.

DISCUSSION

I. Subject-Matter Jurisdiction

As noted, the government has filed a motion to dismiss Mr. Manago’s complaint. It

contends that the Court lacks jurisdiction to review whether Mr. Manago’s involuntary

separation from the Air Force was the result of racial discrimination, just as it lacks jurisdiction

over claims of racial discrimination arising under Title VII or other civil rights statutes. Def.’s

Mot. at 15–16 (citing Baker v. United States, 642 F. App’x 989, 991 (Fed. Cir. 2016) (affirming

dismissal of Title VII claims); Cottrell v. United States, 42 Fed. Cl. 144, 149–50 (1998)

(dismissing claims under Title VII, the Age Discrimination in Employment Act, and other civil

rights laws)). The government’s argument lacks merit.

The Tucker Act empowers this court to hear “any claim against the United States founded

either upon the Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). While the Tucker

Act waives the sovereign immunity of the United States to allow a suit for money damages,

United States v. Mitchell, 463 U.S. 206, 212 (1983), it does not confer any substantive rights on

a plaintiff, United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff seeking to

invoke the court’s Tucker Act jurisdiction must identify an independent source of a substantive

right to money damages from the United States arising out of a contract, statute, regulation, or

constitutional provision. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,

1306 (Fed. Cir. 2008).

The Military Pay Act, 37 U.S.C. § 204, is such an independent source of a substantive

right to money damages. It “confers on an officer the right to the pay of the rank he was

appointed to up until he is properly separated from the service.” Holley v. United States, 124

7

F.3d 1462, 1465 (Fed. Cir. 1997) (quoting Sanders v. United States, 594 F.2d 804, 810 (Ct. Cl.

1979) (en banc)). Accordingly, the Military Pay Act “provides for suit in [the Court of Federal

Claims] when the military, in violation of the Constitution, a statute, or a regulation, has denied

military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013) (quoting Dysart

v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)).

Mr. Manago contends that he was wrongfully demoted and then separated from the Air

Force as a result of race discrimination and that, as a result, he was denied the pay to which he

was entitled under the Military Pay Act. See Compl. ¶¶ 26–30. Further, his allegation that his

demotion and separation were based on racial discrimination asserts a violation of a provision of

the Constitution—i.e., the equal protection guarantee of the Fifth Amendment. See U.S. Const.

amend. V; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229–30 (1995) (“[W]henever the

government treats any person unequally because of his or her race, that person has suffered an

injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal

protection.”). His race discrimination claims are therefore within this Court’s jurisdiction under

the Tucker Act. See Berkley v. United States, 287 F.3d 1076, 1083 (Fed. Cir. 2002) (suit under

Military Pay Act challenging involuntary separations from the Air Force as violative of equal

protection because race and gender were allegedly considered when selecting those who would

be separated); see also Woodward v. United States, 871 F.2d 1068, 1070, 1073 (Fed. Cir. 1989)

(Court of Federal Claims has jurisdiction under the Tucker Act to consider claim of whether the

Navy’s discharge of Plaintiff based on sexual orientation violated the First and Fifth

Amendments). The government’s motion to dismiss Mr. Manago’s claims based on lack of

subject-matter jurisdiction is therefore denied.

II. Justiciability

The government next argues that Mr. Manago’s claims are non-justiciable because they

involve military discipline. Def.’s Mot. at 17–20. According to the government, a challenge to

whether the LORs or LOC Mr. Manago received were warranted, or to the Air Force’s

“subsequent decision to recommend an administrative reduction in rank,” present non-justiciable

issues because “a military decision-maker was faced with having to make a discretionary

personnel decision.” Id. at 18.

The Court agrees with the government that challenges to the propriety of the military’s

disciplinary decisions are generally not justiciable. But that general rule does not prevent the

Court from reviewing a disciplinary decision for conformance with the Fifth Amendment’s

guarantee of equal protection under the law.

It is well established that “[i]n the military arena, because of the admonition against court

interference with military matters . . . justiciability is an especially appropriate inquiry.” Roth v.

United States, 378 F.3d 1371, 1385 (Fed. Cir. 2004) (citing Orloff v. Willoughby, 345 U.S. 83,

94 (1953)). As the Supreme Court has observed, “judges are not given the task of running the

Army.” Orloff, 345 U.S. at 93. To the contrary, “[t]he military constitutes a specialized

community governed by a separate discipline from that of the civilian.” Id. at 94. “Orderly

government requires that the judiciary be as scrupulous not to interfere with legitimate Army

matters as the Army must be scrupulous not to intervene in judicial matters.” Id.

8

In light of these principles, “there are ‘thousands of [ ] routine personnel decisions

regularly made by the services which are variously held nonjusticiable or beyond the competence

or the jurisdiction of courts to wrestle with.’” Murphy v. United States, 993 F.2d 871, 873 (Fed.

Cir. 1993) (alteration in original) (quoting Voge v. United States, 844 F.2d 776, 780 (Fed. Cir.

1988)). In the Court’s view, among these decisions that are beyond its competence is the

selection of the appropriate response to instances of tardiness or other infractions and violations

of military standards of conduct. See Woodward, 871 F.2d at 1077 (noting that special deference

is afforded to the military for matters of “discipline, morale, composition and the like”).

The Court’s deference to the military with respect to such decisions, however, does not

prevent it from reviewing the decisions of the military in response to constitutional equal

protection claims. Berkley, 287 F.3d at 1091. “Review of compliance with statute, regulation,

and the Constitution is the judicial responsibility.” Holley, 124 F.3d at 1468; see also Weiss v.

United States, 510 U.S. 163, 194 (1994) (Ginsburg, J., concurring) (“[M]en and women in the

Armed Forces do not leave constitutional safeguards and judicial protection behind when they

enter military service.”). Further, in reviewing Mr. Manago’s discrimination claim, the Court

will not be weighing in on whether, in its view, the LORs and/or demotion action were

reasonable responses to Mr. Manago’s tardiness or other alleged misconduct. Rather, the Court

will be reviewing the Board’s determination regarding whether Mr. Manago showed by

preponderant evidence that—were it not for his race—the Air Force would not have taken the

same actions. Because the resolution of that issue is within the Court’s competence, the Court

rejects the government’s motion to dismiss based on justiciability.

III. Standard of Review

The scope of review of a military correction board’s decision is a narrow and deferential

one. The Court is “limited to determining whether a decision of the Correction Board is arbitrary,

capricious, unsupported by substantial evidence, or contrary to applicable statutes and

regulations.” Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting

Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)); see also Chappell v. Wallace,

462 U.S. 296, 303 (1983) (decision of the Board for the Correction of Naval Records is “subject

to judicial review” and may be set aside if it is “arbitrary, capricious or not based on substantial

evidence”).

Application of the arbitrary and capricious standard of review “does not require a

reweighing of the evidence, but a determination whether the conclusion being reviewed is

supported by substantial evidence.” Heisig, 719 F.2d at 1157. And substantial evidence is

defined as “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Strand v. United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020) (internal quotation

omitted). The Court may not “substitute [its] judgment for that of the military departments when

reasonable minds could reach differing conclusions on the same evidence.” Heisig, 719 F.2d at

1156.

IV. Merits

Before the Board, Mr. Manago presented several challenges to his administrative

demotion. Included among these was his claim that the demotion “was a culmination of

9

erroneous uses of LORs, retaliation, and apparent discrimination,” AR 26, and that “[t]he manner

in which [he] was treated at the 305th is in line with the findings of racial discrimination by the

Air Force in 2017,” AR 27. He advised the Board that—although he had never previously

attributed his alleged mistreatment to race discrimination—there was now what he called

“verified data, by the Air Force none-the-less, that at the time he was encountering the issues

with the LORs and facing court-martial, the Air Force was disproportionately sending African-

American Airmen to courts-martial and punishing them.” Id.

The Board concluded that Mr. Manago had not provided preponderant evidence to

substantiate his allegations of race discrimination. See AR 12. Specifically, it stated that “the

adverse actions and progressive discipline utilized by the applicant’s leadership do not appear

excessively severe to suggest reprisal, as the applicant had displayed a pattern of failing to report

to appointments and an inability to meet standards as evidenced by several different types of

infractions.” Id. ¶ 3. And based on what it called a “pattern of misconduct,” the Board concluded

that “the commander had sufficient reason to demote the applicant when he failed to meet the

minimum standards expected of a noncommissioned officer, which by regulations is a reason for

administrative demotion.” Id. The Board then turned to Mr. Manago’s allegation of racial

discrimination, and as noted above, the Board stated that it agreed with the “AFPC/JA’s

assessment that the applicant has provided no evidence other than the GAO testimony and POD

report, which make no causal findings even for the service-level disparities, to indicate racial

discrimination contributed to his demotion.” Id.

In his MJAR, Mr. Manago takes issue with the Board’s disposition of his claim of racial

discrimination. First, he contends that he “repeatedly received disproportional punishment for

minor incidents of ‘misconduct’ during his time with the 305th APS.” Pl.’s Mot. at 2. The

Board’s disposition of this contention is supported by substantial evidence. Over a ten-month

period that began in March 2016, Mr. Manago accumulated four LORs and one LOC. These

actions were based on repeated instances of tardiness, the disrespectful treatment of a senior

officer, a safety violation, and a failure to timely pay off a government credit card. The Board

concluded that the disciplinary actions were not disproportionate to the offenses committed, and

this Court has no authority to second-guess that judgment call.

Mr. Manago further contends that the Board did not give adequate weight to certain

reports concerning racial disparities in some aspects of the military services’ disciplinary

practices. See Pl.’s Mot. at 22–25; Pl.’s Reply at 12–14. These include the POD and GAO

reports, which he provided to the Board, and certain reports by the Air Force Inspector General,

which he did not. The Board, Mr. Manago argues, erred by not recognizing the “causal

connection between” his treatment and what he characterizes as the “systemic racism” in

disciplinary actions across the Air Force. Pl.’s Mot. at 23.

But neither the POD nor GAO reports purported to identify “systemic racism” as Mr.

Manago casually suggests. Rather, they revealed racial disparities in certain aspects of the

military justice system, including at the Air Force.

The May 2020 POD report, AR 136–60, is entitled “Federal Lawsuit Reveals Air Force

Cover Up: Racial Disparities in Military Justice, Part II.” The report contains no data of its own

but references a 2017 POD analysis that was based on data that POD secured through FOIA

10

requests. See AR 140 (“Executive Summary”). According to the 2020 report, the 2017 report

revealed that between 2006 and 2015, “Black servicemembers were more likely than White

servicemembers to face military justice or disciplinary action.” AR 142.

After the 2017 POD report was issued, Congress directed the GAO to conduct a review

of data collection and racial disparities in the military. H.R. Rep. No. 115-200, at 126–27 (2017)

(“Comptroller General Report on Race Data in the Military Justice System”). The GAO report

that followed, which Mr. Manago relied upon before the Board, is entitled “Military Justice:

DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities.” AR

161–93. This report states that data covering fiscal years 2013 through 2017 revealed that Black

service members were more likely than white service members to be the subject of recorded

investigations and to be tried in general and special courts-martial. AR 176–77.

The GAO report does not address racial disparities in the imposition of administrative

discipline. But more importantly, as GAO itself cautioned, the disparities it identified, “taken

alone, do not establish whether unlawful discrimination has occurred, as that is a legal

determination that would involve other corroborating information and supporting statistics.” AR

162; see also AR 165 (observing that GAO “did not identify the causes of any racial disparities”

and that “the results of our work alone should not be used to make conclusions about the military

justice process”).

Consequently, GAO made several recommendations designed to sharpen the analysis of

racial disparities and develop plans to address them, including that the military services collect

better demographic information about military justice actions. See, e.g., AR 174 (advising

“military services to include data about race and ethnicity in annual reports about military justice

actions”). It suggested that criteria be established to determine when racial and ethnic disparities

should be subject to further review. AR 175. And it recommended that the military conduct

further evaluations to identify the causes of any disparities in the military justice system and then

take steps to address them as appropriate. AR 190.

The Board concluded that—other than the POD and GAO reports of gross statistical

disparities at the service-wide level—Mr. Manago had provided no evidence, direct or

circumstantial, to show that racial discrimination contributed to his demotion. He produced no

evidence to show, for example, that similarly situated white colleagues in the 305th APS

received more favorable treatment at the hands of their superiors when they committed

infractions similar to those he committed. Nor did he identify even one white non-commissioned

officer with a similar disciplinary history who was not administratively demoted. The Board’s

decision rejecting his race discrimination allegations was therefore neither arbitrary and

capricious, nor contrary to law, but was instead supported by substantial evidence in the record

as a whole.

11

V. Request to Supplement/Correct the Administrative Record or, in the Alternative,

for a Remand

A. Motion to Supplement the Administrative Record

Along with his motion for judgment on the administrative record, Mr. Manago requested

leave to supplement the administrative record with several additional documents that he filed as

exhibits to his MJAR. Pl.’s Mot. at 20–22. These consist of: (1) the transcript of a June 16, 2020

congressional hearing that concerned racial disparities in the military justice system (Ex. A); (2)

a one-page email exchange between Mr. Manago’s counsel and Lieutenant General (“Lt. Gen.”)

Rockwell, the Air Force’s Judge Advocate General (Ex. B); and (3) two reports by the Air Force

IG concerning a racial disparity review his office conducted (Exs. C and D). 4 Pl.’s Mot. at 21–

22.

The Court finds that it would be improper to supplement the administrative record with

these documents. As noted above, in military pay cases, the Court’s job is to “apply the

appropriate APA standard of review to the agency decision based on the record the agency

presents to the reviewing court.” Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009)

(citation omitted). Because the Court’s review is based on APA standards, its “focal point” is

“the administrative record already in existence, not some new record made initially in the

reviewing court.” Id. (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985)).

Permitting parties to add new evidence to the administrative record for the court’s consideration

risks “convert[ing] the ‘arbitrary and capricious’ standard into effectively de novo review.”

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)

(quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000)).

To avoid these consequences and keep the focus on the administrative record in

existence, supplementation is permitted only in cases in which “the omission of extra-record

evidence precludes effective judicial review.” Id. (quoting Murakami, 46 Fed. Cl. at 735). For

example, the Court might approve supplementation of the record where a party challenges the

legitimacy of an agency’s decision-making process. In that circumstance, documents that were

not part of the administrative record may be pertinent to whether the proceedings were conducted

properly. See Naval Sys., Inc. v. United States, 153 Fed. Cl. 166, 178 (2021) (supplementation of

the administrative record may be appropriate “if the agency deliberately or negligently excluded

documents that may have been adverse to its decision” (quoting Nat’l Mining Ass’n v. Jackson,

856 F. Supp. 2d 150, 156 (D.D.C. 2012))).

4

Because the Board’s decision is not dated, see AR 4–13, Mr. Manago has also requested that

the Court include in the administrative record a copy of the email transmitting the Board’s

decision to him, which shows the date that the decision was issued, Pl.’s Mot. Ex. E, ECF No.

10-5. The Court concludes that the motion to supplement the record to add this document is

unnecessary. The email should be considered part of the record before the Court. Cf. Fed. R.

App. P. 16(a) (making agency decision part of the record on review before the court).

12

The documents that Mr. Manago has asked the Court to add to the administrative record

do not concern the Board’s decision-making process. They are intended to provide further

support for Mr. Manago’s claim that he was a victim of discrimination. The principle that

judicial review of agency action is confined to the administrative record “exerts its maximum

force when the substantive soundness of the agency’s decision is under scrutiny.” Esch v.

Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). Mr. Manago’s request to supplement the

administrative record is therefore denied.

B. Motion to Complete the Administrative Record

In his reply, Mr. Manago for the first time argues that the Court should treat his Motion

to Supplement the Record with respect to two reports issued by the Air Force IG (Pl.’s Mot. Exs.

C and D) as a motion to correct or complete the record. Pl.’s Reply at 4 n.2 (requesting that “the

Court consider both completion and supplementation” as to Exhibits C and D). Such a motion

“seeks to add documents relevant to the challenged agency decision that were considered by the

relevant agency decisionmakers but were not included in the record” provided to the court.

Poplar Point RBBR, LLC v. United States, 145 Fed. Cl. 489, 494 (2019). Mr. Manago contends

that the IG reports should be treated as though they were already part of the administrative record

because they were prepared at the request of the Secretary of the Air Force and published before

the Board issued its final decision. Pl.’s Reply at 4.

This argument lacks merit. The administrative record “includes all materials ‘compiled’

by the agency that were ‘before the agency at the time the decision was made.’” James Madison

Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (internal quotation marks and citation

omitted). It encompasses “all documents and materials that the agency ‘directly or indirectly

considered’ . . . [and nothing] more nor less.” Pac. Shores Subdivision, Cal. Water Dist. v. U.S.

Army Corps of Eng’rs, 448 F. Supp. 2d 1, 4 (D.D.C. 2006) (alterations in original) (quoting

Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006)); see also Animal Legal Def.

Fund, Inc. v. Perdue, 872 F.3d 602, 611 (D.C. Cir. 2017) (observing that “typically” included in

the administrative record are “the order involved; any findings or reports on which it is based;

and the pleadings, evidence, and other parts of the proceedings before the agency” (quoting Fed.

R. App. P. 16(a))).

The Court is unaware of any precedent to support Mr. Manago’s novel argument that

documents become part of the administrative record before an appeals board simply by virtue of

being generated by other components of the agency (such as the Inspector General). If Mr.

Manago wanted the Board to consider the IG’s reports, he had the opportunity to bring them to

the Board’s attention and try to persuade the Board that they were relevant to, and supportive of,

his race discrimination claims. He did not do so and, as a result, the Board did not consider them.

Therefore, his request that the reports now be admitted to “complete” the administrative record is

denied.

VI. Remand

Finally, in his reply brief, Mr. Manago suggests for the first time that—if the Court

denies his motion to supplement the administrative record—it consider remanding the case to the

13

Board with instructions that it consider the additional documents. Pl.’s Reply at 9–10. The Court

declines to remand the case for two reasons.

First, the documents that are the subject of the motion to supplement were available to

Mr. Manago before the Board issued its decision, and yet he failed to introduce them into

evidence. “[W]here evidence could have been submitted to a corrections board and was not, the

evidence is properly excluded by the Court of Federal Claims.” Barnick v. United States, 591

F.3d 1372, 1382 (Fed. Cir. 2010) (citing Walls, 582 F.3d at 1368).

Second and in any event, the documents have little, if any, relevance to the resolution of

Mr. Manago’s discrimination claim for much the same reasons set forth above with respect to the

POD and GAO reports. For example, Mr. Manago cites the transcript of a hearing before the

Subcommittee on Military Personnel of the House Committee on Armed Services entitled

“Racial Disparity in the Military Justice System—How to Fix the Culture.” Pl.’s Mot. Ex. A at 1,

ECF No. 10-1. Mr. Manago identifies several passages in the hearing transcript that he believes

the Board should be permitted to consider: (1) testimony by retired USAF Col. Don M.

Christensen, the POD President, alleging racial disparities in the imposition of discipline in the

Air Force, and criticizing the failure of the Air Force to address the issue; (2) remarks by Col.

Christensen that—without using Mr. Manago’s name—specifically reference and criticize the

decision of the Commander of the 305th APS to refer to a special court-martial charges that Mr.

Manago had arrived six minutes late to the August 12, 2016 meeting; and (3) a brief colloquy

between Representative Speier and a panel of Judge Advocates General from all of the military

services during which she asked if “any of you think that someone should be court martialed for

being 6 minutes late to a formation meeting,” to which Lt. Gen. Rockwell responded, “No

ma’am.” Pl.’s Mot. at 13–14.

Mr. Manago also offers a one-page email exchange between his counsel and Lt. Gen.

Rockwell. In it, counsel noted that since the hearing she had been contacted by “multiple

members of the media to broadcast Mr. Manago’s story.” Pl.’s Mot. Ex. B at 1, ECF No. 10-2.

She stated that Mr. Manago wanted to “proceed through the administrative channels outside the

media, and would like an opportunity to personally discuss the requested relief with Air Force

leadership.” Id. She decided to enlist his help, she said, because he had been present at the

hearing “in which the JAGs for each service acknowledged that the court-martialing of an

Airman for being 6 minutes late to a meeting was likely improper.” Id. In his response, Lt. Gen.

Rockwell thanked Mr. Manago’s counsel for her email, but explained that because the “petition

is addressed in the [AF]BCMR process, [he] ultimately will have to advise the Secretary or final

decision authority” as the Judge Advocate General. Id. He offered, however, to answer any

questions she had about the process. Id.

Neither of these documents sheds any light on whether Mr. Manago’s administrative

demotion was racially motivated. Col. Christensen’s testimony concerned the gross racial

disparities identified in the 2017 POD report discussed above and criticisms of the Air Force’s

alleged lack of transparency and failure to take remedial action to study and address the

disparities. The disparities identified did not involve administrative discipline and, in any event,

do not establish disparate treatment even as to the types of actions studied.

14

The hearing transcript also includes Col. Christensen’s observations that the decision “2

years ago . . . to prosecute a Black [non-commissioned officer] for being 6 minutes late to work,

literally 6 minutes late to a meeting,” resulting in “a court-martial conviction” was “a decision

that truly should not have been made.” Pl.’s Mot. Ex. A at 14. This testimony is also of limited

relevance, if any. Mr. Manago’s court-martial is not at issue here and, in any event, Col.

Christensen did not suggest that the decision to refer him to a court-martial was based on racial

discrimination. His concern was about “the optics” of the referral. Id. Indeed, he recognized that

such referral was mandatory because Mr. Manago had declined to accept a non-judicial

punishment. Id. (“I don’t care if it was an Article 15 turndown or not[.]”). Further, Lt. Col.

Rockwell’s response that it would never be proper to refer a service member to a court-martial

based on being six minutes late to a meeting does not reflect any appreciation of the

individualized circumstances of Mr. Manago’s case.

The Court also does not understand why Exhibit B, the email between Mr. Manago’s

counsel and Lt. Col. Rockwell, has any relevance at all. The email reflects that Lt. Col. Rockwell

thought it improper to have a discussion with Mr. Manago’s counsel because it would ultimately

be his job to advise the Secretary of the Air Force whether to accept the Board’s decision on Mr.

Manago’s petition. See Pl.’s Mot. Ex. B at 1. Although Mr. Manago suggests that this shows

some sinister motive on the part of Lt. Col. Rockwell, see Pl.’s Reply at 6 (describing

“Rockwell’s assurance that he would appropriately advise the final decision authority” as “bad

faith”), in the Court’s view, his response to counsel was entirely professional and appropriate.

The third document is a December 2020 Report by the Air Force IG entitled “Report of

Inquiry (S8918P) Independent Racial Disparity Review.” Pl.’s Mot. Ex. C at 1, ECF No. 10-3;

see also id. at 6 (listing disparities between Black and white service members). The fourth

document, issued in September 2021, is similarly entitled “Report of Inquiry (S8918P) Disparity

Review.” Pl.’s Mot. Ex. D at 1, ECF No. 10-4. It was intended to build on the December 2020

report by addressing disparities affecting women, Asian Americans, Native Americans, Pacific

Islanders, and Hispanic/Latino racial and ethnic minorities. Id. at 5 (describing the report as

“addressing disparities in discipline and opportunities” amongst the aforementioned groups).

The purpose of the December 2020 report was “to assess racial disparity in military

discipline processes[,] personnel development[,] and career opportunity.” Pl.’s Mot. Ex. C at 4. It

concludes that disparities affecting Black service members exist in a number of areas, including

“law enforcement apprehensions, criminal investigations, military justice, administrative

separations, placement into occupational career fields, certain promotion rates, professional

military educational development, and leadership opportunities.” Id. at 6.

With respect to administrative disciplinary actions and demotions in particular, the IG

found that “young [B]lack enlisted members are almost twice as likely as white enlisted

members to be involuntarily discharged based on misconduct.” Id. The IG further observed that

because such discharges are largely based on letters of reprimand, admonishment, or counseling,

the disparity suggested that “young [B]lack service members as a whole may be receiving more

administrative disciplinary actions than their peers.” Id. at 19. Nonetheless, like the GAO before

it, the IG cautioned that “[w]hile the data show racial disparity, it does not indicate causality.” Id.

at 6; see also id. at 134. “Data alone,” the IG explained, “do not address why racial disparity

exists in these areas.” Id. at 6.

15

Moreover, at the time of his demotion, Mr. Manago was not a “young . . . enlisted

member[].” See id. He was a non-commissioned officer at the E-5 level. The IG expressly stated

in his report that the findings of disparities in administrative discharges covered members in the

E-1 to E-4 category. Id. at 21. Although the review “also looked at administrative discharges for

misconduct involving non-commissioned and senior non-commissioned officers . . . there were

not enough cases to provide statistical analysis.” Id. n.8.

CONCLUSION

Based on the foregoing, Mr. Manago’s motion to supplement or complete the

administrative record, ECF No. 10, is DENIED. His MJAR, ECF No. 10, is also DENIED, and

the government’s cross-MJAR, ECF No. 11, is GRANTED. The Clerk is directed to enter

judgment accordingly.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Chief Judge

16