Dennis A. Dickson v. Secretary of Defense

SILBERMAN, Circmt Judge,

concurring in part and dissenting in part:

Reluctantly, I agree with the majority that judicial review is available, but remandmg tMs back to the Board is contrary to the law of tMs circmt.

A string of Supreme Court decisions, wMch have created and nourished the artificial presumption that Congress intends judicial review of agency action, gives any petitioner an enormous leg up. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 , 106 S.Ct. 2133, 2135 , 90 L.Ed.2d 623 (1986); Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983); Dunlop v. Bachowski, 421 U.S. 560, 567 , 95 S.Ct. 1851, 1857-58 , 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 , 91 S.Ct. 814, 820-821 , 28 L.Ed.2d 136 (1971); Barlow v. Collins, 397 U.S. 159, 166-167 , 90 S.Ct. 832, 837-838 , 25 L.Ed.2d 192 (1970); Abbott Lab. v. Gardner, 387 U.S. 136, 140 , 87 S.Ct. 1507, 1511 , 18 L.Ed.2d 681 (1967). (Public choice economists would surely point out that tMs presumption is more than a little self-serving.) And in Kreis v. Secretary of Air Force, 866 F.2d 1508 (D.C.Cir.1989), we held that substantive decisions of correction boards under § 1552(a) were reviewable notwithstand-Mg a similar delegation to the Boards to make corrections when there was an “error or injustice.” We did so relying on the Supreme Court’s opimon in Chappell — which was most closely on pomt — but recognizmg that Chappell’s logic was very much in tension with the later Supreme Court opimon in Webster v. Doe, 486 U.S. 592 , 108 S.Ct. 2047 , 100 L.Ed.2d 632 (1988).

I am not persuaded that the Congress, by using the term in § 1552(b) “in the interests of justice,” contemplated judicial review. It is suggested that that standard is one peculiarly within the expertise of the judiciary. *1408 But, the “interest of justice” standard, absent some principles drawn from a statute or particular body of law, is without determinable substantive content. At bottom, it is a phrase often, perhaps typically, used by judges in circumstances when they wish to impose their own will rather than apply the law. That is why Justice Holmes bristled when his Mend Learned Hand, shouted out, as they were departing company, “Well, sir, good-bye. Do justice!” Holmes stopped and said “That is not my job. My job is to play the game according to the rules.” HARRY C. Shrtver, What Gusto: Stories and Aneo-dotes About Justice Oliver Wendell Holmes 10 (1970). Nevertheless, having determined that actions under § 1552(a) are reviewable, I do not see how we can persuasively draw a distinction, based on congressional intent, between that section and § 1552(b). Still, to hold that the Board’s refusal to grant a waiver is reviewable does not oblige us to remand to the Board for the explication of a “waiver policy” that the majority requires.

Even when judicial review is undeniable, we have traditionally afforded an agency determination whether to grant a waiver of a rule maximum deference. City of Angels Broadcasting Inc. v. FCC, 745 F.2d 656, 663 (D.C.Cir.1984); Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C.Cir.1983); WAIT Radio v. FCC, 459 F.2d 1203, 1207 (D.C.Cir.), cert. denied, 409 U.S. 1027 , 93 S.Ct. 461 , 34 L.Ed.2d 321 (1972). Judicial review of agency action has, as its core concern, the notion that agencies should treat the subjects of their authority equally. The prohibition against arbitrary and capricious action in the APA flows naturally out of the basic concept that ours is a government of laws not men. Thus, reviewing courts show little tolerance for rules that are fashioned to apply unequally. And, agencies are not permitted to adjudicate in such a fashion as to favor illogically one litigant over another. We, thus, force agencies to carefully explain deviations in course whether adopted in a regulatory or adjudicatory mode. On the other hand, we recognize that rules can have a harsh impact in unusual situations. When an agency waives its rules in a particular case, we will not typically hold the agency to a very exacting standard of explanation, recognizing that if we do we may make it practically impossible for the agency to grant any waivers.

Appellant’s claim essentially is that the Army’s policy toward alcoholism has changed over the many years since they were discharged and that they might be treated differently on the merits today than was so decades before. In this respect, they rely on a Ninth Circuit opinion, Guerrero v. Stone, 970 F.2d 626 (9th Cir.1992), suggesting (outrageously, it seems to me) that the Board must consider the merits of an ex-service member’s claim when considering whether to grant a waiver for a late application. Appellants have not sought to show that the Army Board’s denial of waivers in these cases is inconsistent with any previous actions of the Board. Appellants do not advance any plausible reason for having delayed beyond the three-year statute of limitations to file their request for corrections of records. This is true even if the three-year statute of limitations is construed as having started to run when the Army changed its policy in 1980. 1 In a quite similar case, which should be thought binding on this panel, we held that the Board’s action was not arbitrary and capricious, without requiring any explanation of the Board. Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 362, 366-367 (D.C.Cir.1993). The majority’s opinion — demanding that the Army Board set forth a comprehensive explanation of its policy toward waiver — follows precisely the reasoning of the dissent in that case. Id. at 370-371 .

To be sure, we will not typically accept an agency decision that is unaccompanied by an explanation adequate to permit us to understand the agency’s reasoning. But a decision to grant or not to grant a waiver, which is subject to such deferential review, is in a different category. It is usually when we are faced with palpably inconsistent actions that an agency is obliged to explain. See, e.g., Green Country Mobilephone v. FCC, 765 *1409 F.2d 235 (D.C.Cir.1985). 2 It seems clear to me that Congress intended the Board’s waiver authority to be exercisable without such heavy-handed judicial supervision. This is an instance of an unfortunate trend in administrative law — building on the self-serving judicial review presumption — of allowing the judicial review tail to wag the administrative (and statutory) dog. Now the Department will have to go though the burden of spelling out those circumstances under which a waiver will be granted, cabining their discretion, so that we, the reviewing court, will be con-venieneed.

Ironically, the result will almost surely disadvantage veterans since it seems-inevitable that on remand the Board will adopt standards for a waiver that will only focus on the reasons for delay — rather than the merits of the claim. That means perforce that some veterans, whose claims on the merits for some reason would have moved the hearts of the Board members, will not be able to get a waiver. This is just a small example of the pernicious effect of a judicial mind set, nourished by the prejudices of law professors and lawyers, that believes implicitly that as many decisions as possible in our society should be subordinated to judicial oversight.

. Appellants argue that the Board’s decision refusing to excuse applicants' failure to file within three years was illegal, not that they had filed within three years.

. Perhaps, if one of the appellants attempted to explain his delay in terms other than the merits of his claim the case might be different.