Opposition Brief — Walter N. Strand, III, Petitioner v. United States

Supreme Court briefOct 30, 2020

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No. 20-111

In the Supreme Court of the United States

WALTER N. STRAND, III, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

JEFFREY BOSSERT CLARK

Acting Assistant Attorney

General

ROBERT E. KIRSCHMAN, JR.

DOUGLAS K. MICKLE

MATTHEW J. CARHART

Attorneys

SEAN B. PATTON

Attorney

Department of the Navy

Washington, D.C. 20374-5066

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Secretary of the Navy’s denial of a request under 10 U.S.C. 1552 to adjust petitioner’s military service record must be set aside because he did not

adopt the recommendation of a records correction

board, even though the Secretary’s denial is not arbitrary or capricious, is supported by substantial evidence, and is not otherwise contrary to law.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

A. Statutory and regulatory background ............................ 2

B. The present controversy................................................... 3

Argument..................................................................................... 10

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Blassingame v. Secretary of the Navy,

866 F.2d 556 (2d Cir. 1989) ................................................ 15

Champagne v. Schlesinger, 506 F.2d 979

(7th Cir. 1974) ...................................................................... 14

Dibble v. Fenimore, 545 F.3d 208 (2d Cir. 2008) ................ 15

Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974) ............. 15

Horn v. Schlesinger, 514 F.2d 549 (8th Cir. 1975) ............. 14

Miller v. Lehman, 801 F.2d 492 (D.C. Cir. 1986) ............... 12

Neal v. Secretary of the Navy, 639 F.2d 1029

(3d Cir. 1981) ....................................................................... 14

Nelson v. Miller, 373 F.2d 474 (3d Cir.),

cert. denied, 387 U.S. 924 (1967) ....................................... 15

Proper v. United States, 154 F. Supp. 317

(Ct. Cl. 1957) .............................................................. 8, 15, 16

Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979) ......... 8

Strickland v. United States, 423 F.3d 1335

(Fed. Cir. 2005) ......................................................... 7, 14, 16

Weiss v. United States, 408 F.2d 416 (Ct. Cl. 1969) ....... 8, 16

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 16

(III)

Statutes and regulations:

Page

Administrative Procedure Act, 5 U.S.C. 701 et seq............ 11

5 U.S.C. 704 ...................................................................... 11

5 U.S.C. 706(2)(A) ............................................................ 11

Legislative Reorganization Act of 1946,

10 U.S.C. 1552 ....................................................... 2, 9, 12, 13

10 U.S.C. 1552(a) ....................................................... 12, 13

10 U.S.C. 1552(a)(1) ......................................... 2, 11, 12, 13

10 U.S.C. 1552(a)(2) ......................................................... 12

10 U.S.C. 1552(a)(3)(A) ..................................................... 2

10 U.S.C. 1552(a)(3)(D) ................................................... 13

10 U.S.C. 1552(b) ............................................................. 13

10 U.S.C. 6330(b) ..................................................................... 4

32 C.F.R.:

Section 723.2 ................................................................ 2, 12

Section 723.3(a) .................................................................. 2

Section 723.3(e)(1) ............................................................. 2

Section 723.3(e)(4) ..................................................... 2, 3, 9

Section 723.4-723.5 ............................................................ 2

Section 723.6(a)(3) ......................................................... 2, 3

Section 723.6(e)(1) ............................................................. 3

Section 723.6(e)(1)-(2) ....................................................... 3

Section 723.6(e)(2)(iii) ................................................... 3, 5

Section 723.7(a) .................................................................. 3

In the Supreme Court of the United States

No. 20-111

WALTER N. STRAND, III, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-28a)

is reported at 951 F.3d 1347. The opinion of the United

States Court of Federal Claims (Pet. App. 30a-54a) is

reported at 138 Fed. Cl. 633. A related opinion of the

court of appeals (Pet. App. 68a-78a) is reported at 706

Fed. Appx. 996. A related opinion of the United States

Court of Federal Claims (Pet. App. 81a-96a) is reported

at 127 Fed. Cl. 44.

JURISDICTION

The judgment of the court of appeals was entered on

March 3, 2020. The petition for a writ of certiorari was

filed on July 29, 2020. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

A. Statutory And Regulatory Background

The Legislative Reorganization Act of 1946, 10

U.S.C. 1552, authorizes military service secretaries to

correct the records of service members in certain circumstances. Section 1552(a)(1) provides that “[t]he

Secretary of a military department 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)(1). The Act

states that, with exceptions not relevant here, any such

corrections “shall be made by the Secretary acting

through boards of civilians of the executive part of that

military department,” ibid., and “shall be made under

procedures established by the Secretary concerned,” 10

U.S.C. 1552(a)(3)(A). The Board for Correction of Naval Records (BCNR or Board) has been established to

assist the Secretary of the Navy with this task. 32

C.F.R. 723.2.

Navy regulations provide that applications for correction are submitted, in the first instance, to the

Board. 32 C.F.R. 723.3(a). If accepted for consideration, “all pertinent evidence of record” is reviewed by a

three member panel. 32 C.F.R. 723.3(e)(1). Where the

Board concludes a hearing is warranted, the regulations

provide for the appearance of counsel, the presentation

of witnesses, and the submission of documentary evidence. 32 C.F.R. 723.4-723.5. Following such a hearing,

or if the Board determines that no hearing is warranted,

the Board issues “written findings, conclusions and recommendations.” 32 C.F.R. 723.6(a)(3); see 32 C.F.R

723.3(e)(4). If the Board recommends the denial of relief, it is required to include a “brief statement of the

grounds for denial.” 32 C.F.R. 723.3(e)(4); see 32 C.F.R.

723.6(a)(3).

“With respect to all petitions for relief properly before it,” the Board is generally authorized to take “final

corrective action on behalf of the Secretary.” 32 C.F.R.

723.6(e)(1). A limited number of categories of petitions,

however, are “reserved for decision by the Secretary.”

32 C.F.R. 723.6(e)(1)-(2). Among them are petitions

that, “in the determination of [the] Office of the Secretary or the Executive Director [of the Board], warrant

Secretarial review.” 32 C.F.R. 723.6(e)(2)(iii). In those

instances, the record of proceedings before the Board

“will be forwarded to the Secretary who will direct such

action as he or she determines to be appropriate.” 32

C.F.R. 723.7(a). If the Secretary determines to deny

relief, “such decision shall be in writing and, unless he

or she expressly adopts in whole or in part the findings,

conclusions and recommendations of the Board, or a minority report [of the Board], shall include a brief statement of the grounds for denial.” Ibid.

B. The Present Controversy

1. Petitioner enlisted in the Navy in 1988. Pet. App.

100a. In 2008, while still on active duty, he fired a gun

at a car carrying his estranged wife and her boyfriend.

Id. at 33a, 100a. Based on that conduct, petitioner was

charged with and convicted in a Virginia state court on

three felony counts of attempted malicious wounding,

attempted unlawful wounding, and the use of a firearm

in the commission of a felony. Id. at 33a, 100a-101a.

And he was sentenced to six years of imprisonment,

three of which were eventually suspended for good behavior. Ibid.

Following his conviction, the Navy discharged petitioner under “other than honorable conditions,” based

on “misconduct due to [the] commission of a serious offense,” his “longstanding history of Family Advocacy

Program (FAP) involvement and domestic violence issues,” and a determination that “his behavior did not

align with the Navy’s core values.” Pet. App. 101a. Petitioner had served for 19 years and six months before

his discharge. Id. at 34a. Because he was separated

before accruing 20 years of service, he was ineligible to

request that the Navy transfer him to the Fleet Reserve, a form of retirement available to enlistees. C.A.

App. 355-362; 10 U.S.C. 6330(b).

2. In 2014, petitioner applied to the BCNR seeking

various “corrections” to his service record, including a

six-month service credit to gain eligibility for retirement and other benefits. Pet. App. 3a; see id. at 71a72a. The Board recommended to the Secretary that the

Navy modify petitioner’s records “to show [that] he was

honorably retired with 20 years of service,” i.e., to grant

him six months of retirement credit and an upgrade to

his discharge conditions, and to strike from his records

that the Navy had discharged him due to his civil convictions. Id. at 104a; see id. at 99a-105a. The Board

“note[d] the seriousness of [p]etitioner’s disciplinary infractions and d[id] not condone his misconduct.” Id. at

103a. But it concluded that “[p]etitioner ha[d] suffered

long enough for his indiscretion and should be granted

relief in the form of credited term served.” Ibid.

On the same day, the Executive Director of the

Board—a retired Navy judge advocate serving as a

civilian—referred the Board’s recommendation to the

Secretary for decision. See Pet. App. 87a; Pet. 18 n.14.

In a handwritten note, he explained that, “based on the

seriousness of the offense and the significant grant of

relief, [the Secretary] should review this case for decision.” C.A. App. 35; see 32 C.F.R. 723.6(e)(2)(iii). After

review, the Secretary disapproved the BCNR’s recommendation. Pet. App. 97a-98a. The Secretary concluded that the recommendation of the BCNR was

“wholly inconsistent” with both (i) the Navy’s core values and (ii) the Navy’s “practice in similar cases involving discharge for criminal conduct and criminal conviction.” Ibid. In reaching these conclusions, the Secretary relied in part on the fact that petitioner had a history of FAP involvement and “domestic violence issues.” Id. at 98a (citation omitted).

3. The Court of Federal Claims determined that the

Secretary’s decision was not supported by substantial

evidence, Pet. App. 81a-96a, and the Federal Circuit affirmed, id. at 68a-78a. The Federal Circuit reasoned

that the Secretary’s statement describing petitioner’s

“history of FAP involvement and domestic violence issues” lacked sufficient support in the record. Id. at 74a.

And “because the Secretary relied on a combination of

intertwined reasons,” one of which the court found not

to be supported by substantial evidence, the court concluded that the Secretary’s decision had to be vacated.

Id. at 75a. Nevertheless, although the trial court had

ordered the Navy “to retire [petitioner] with all appropriate backpay, benefits, and allowances,” id. at 96a, the

Federal Circuit held that “further administrative proceedings could remedy the defects in the Secretary’s

decision,” and thus it remanded to the Secretary for further proceedings, id. at 69a.

On remand, the Secretary again rejected the recommendation of the BCNR. Pet. App. 55a-67a. The Secretary observed that “[s]ince []the early days of the Naval service, there have been three bedrock principles or

core values that guide our military members: honor,

courage and commitment.” Id. at 60a. The Secretary

reasoned that petitioner’s misconduct that led to his

state-law felony convictions was inconsistent with each

of those values. See id. at 62a-63a (“Petitioner * * * did

not demonstrate honorable behavior towards * * * his

former spouse, the victim of his crime.”); id. at 63a (“Instead of engaging in a crime of passion, [p]etitioner

could have demonstrated the Navy core value of courage by walking away.”); id. at 64a (“Commitment requires a service member * * * to make decisions that

are in the best interest of the Navy and the Nation * * * [but] [w]hen [p]etitioner elected to take a gun

and attempted to harm his former spouse, he * * * had

no regard for our Nation’s laws or its people.”).

The Secretary concluded that petitioner’s failures

were “aggravat[ed]” by the fact that he had received

non-judicial punishment and counseling earlier in his

career for abusing alcohol, providing him “notice of his

obligation to comply with both military regulations and

civilian laws and that his failure to adhere and measure

up to the high standards of performance required of all

members of the U.S. Navy could lead to his separation

from service.” Pet. App. 62a, 63a; see id. at 61a-62a.

And the Secretary found further support in the fact that

most service members convicted in the military justice

system for conduct similar to petitioner’s crimes “receive punitive discharges in addition to confinement.”

Id. at 65a; see id. at 65a-66a.

The Secretary considered the remainder of petitioner’s military service and his good post-discharge

conduct, including his acceptance of responsibility for

his 2008 criminal offenses. Pet. App. 66a; see id. at 60a61a. The Secretary “commend[ed] [p]etitioner’s efforts

to engage in rehabilitation following his conviction and

incarceration, as well as his efforts to rebuild his life.”

Id. at 66a. But the Secretary “d[id] not find that [p]etitioner’s overall periods of enlisted service * * * and

post-service conduct * * * [we]re sufficient to overcome the seriousness of the misconduct that resulted in

his civilian conviction for felony offenses.” Id. at 60a.

In sum, the Secretary “d[id] not find that relief [wa]s

warranted and that [p]etitioner should be granted credited time served for retirement when, in fact, the basis

for his inability to retire was not an error or an injustice,

but his own deliberate misconduct despite being on

clear notice of the consequences of his actions.” Pet.

App. 66a.

4. Petitioner again sought review of the Secretary’s

decision in the Court of Federal Claims. Pet. App. 31a.

The court again held that the Secretary’s decision was

arbitrary and capricious and “direct[ed] the Navy

to * * * retire [petitioner] with all appropriate back

pay, benefits, and allowances.” Id. at 54a; see id. at 30a54a. This time, however, the Federal Circuit reversed.

Id. at 1a-21a.

a. The court of appeals first rejected petitioner’s argument that the Secretary may disapprove a Board’s

recommended correction only if the Board’s findings

are unsupported by the administrative record. Pet.

App. 11a-14a. The court observed that it had long held

that “Board recommendations are not binding on the

Secretary since ‘Congress clearly has delegated the final authority regarding any correction of military records to the Secretary, not the correction board.’ ” Id. at

11a (quoting Strickland v. United States, 423 F.3d 1335,

1340 (Fed. Cir. 2005)). It also noted that its predecessor

court—the Court of Claims—had similarly held that

“Secretaries are free to . . . differ with the recommendations of [correction] boards where the evidence is susceptible to varying interpretations.” Id. at 13a (quoting

Sanders v. United States, 594 F.2d 804, 812 (Ct. Cl.

1979) (en banc)) (brackets in original). And it explained

that, despite some language in other cases from the

Court of Claims that “would seem to support” petitioner, those decisions “were rendered in the context of

service secretaries being influenced by—or outright

adopting—the opinions of military officers in rejecting

otherwise substantiated board recommendations.” Id.

at 12a (citing Proper v. United States, 154 F. Supp. 317,

326 (Ct. Cl. 1957); Weiss v. United States, 408 F.2d 416,

420-421 (Ct. Cl. 1969)). The court of appeals thus reiterated that “where a military officer has not unduly influenced the secretary’s decision, a service secretary

may reject the recommendation of a records correction

board—even a recommendation supported by the administrative record—so long as the secretary’s rejection decision is not arbitrary or capricious, unsupported

by substantial evidence, or otherwise contrary to the

law.” Id. at 14a.

The court of appeals next concluded that the Secretary’s decision satisfied this standard. Pet. App. 14a21a. The court observed that, after “a broad review of

[petitioner’s] record,” the Secretary reasonably placed

“heavy weight” on petitioner’s “ ‘cho[ice] to take a gun

and attempt[ ] to cause his former wife and another individual substantial harm.’ ” Id. at 15a (citation omitted;

second and third sets of brackets in original). And the

court determined that petitioner’s criminal conduct

“fully support[ed] denying him credit for six months of

service he did not perform.” Ibid.

The court of appeals rejected petitioner’s various objections to the Secretary’s additional reasoning. The

court explained, for example, that, while it was true that

the Navy “had not adopted its core values of Honor,

Courage, and Commitment” when petitioner was first

counseled for alcohol abuse in 1992, there was “nothing

arbitrary about analyzing his overall history of performance and conduct under the values existing at the time

of the [Secretary’s] decision,” and that petitioner’s

counseling in 1992 “still could—and did—warn him of

the consequences of future misconduct.” Pet. App. 18a.

Moreover, although petitioner faulted the Secretary for

giving “insufficient consideration” to his positive service record and post-service conduct, the court explained that the Secretary had in fact acknowledged

several positive aspects of petitioner’s record, and there

was no requirement that the Secretary’s “ ‘brief statement’ ” lists “every aspect of a petitioner’s record.” Id.

at 19a-20a & n.11 (quoting 32 C.F.R. 723.3(e)(4)).

Finally, the court of appeals concluded that the fact

“[t]hat the Secretary weighed certain aspects of the record differently than did the Board does not mean that

the Secretary’s conclusions were arbitrary or unsubstantiated.” Pet. App. 20a. Even if the “Board’s contrary conclusion may also be supported by substantial

evidence,” the court wrote, “that conclusion is not under

review here.” Ibid. “[W]hereas the Secretary in correcting a military record is to act through a board of civilians, as required by [10 U.S.C. 1552], he has . . . retained the authority to take such final action on board

recommendations as he determines to be appropriate.”

Id. at 20a-21a (citation omitted; first set of brackets in

original). Because the Secretary properly exercised

that discretion, the court of appeals reversed the trial

court and reinstated the Secretary’s decision. Id. at

21a.

b. Judge Reyna dissented. Pet. App. 22a-28a.

Judge Reyna did not disagree with the panel’s holding

that the Secretary was free to disagree with the Board’s

recommendation, as long as the Secretary’s decision

was not arbitrary and capricious and is supported by

substantial evidence. But he would have vacated the

Secretary’s decision under that standard based on his

conclusion that the record did not support one aspect of

the Secretary’s decision—namely, the Secretary’s suggestion that petitioner had been counseled early in his

career for two different acts of misconduct (one in 1992

and one in 1993), rather than being counseled twice for

the same misconduct. Id. at 22a-23a. Judge Reyna disagreed with the panel majority that any such error in

the Secretary’s decision was harmless. Compare id. at

27a-28a, with id. at 5a n.8 (majority opinion) (concluding

that, while it was “unclear from the record whether the

1992 and 1993 entries addressed the same underlying

act(s) of misconduct,” any error was harmless).

c. Petitioner did not seek rehearing en banc.

ARGUMENT

Petitioner contends (Pet. 10-30) that the Secretary’s

decision not to adjust petitioner’s service record must

be set aside unless the Board’s recommendation to

make such an adjustment was not supported by substantial evidence. The court of appeals correctly rejected that contention. And its decision does not conflict

with any decision of this Court or of another court of

appeals. Further review is unwarranted.

1. The court of appeals correctly determined that, at

least where a military officer has not unduly influenced

a service secretary’s decision, the secretary may reject

a recommendation of a correction board that is supported by substantial evidence—as long as the secretary’s rejection decision does not violate the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. Section 1552(a)(1) provides that “[t]he Secretary of [each]

military department 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)(1). In so doing, the statute

vests in the Secretary the authority and discretion to

make the final determination whether any record correction is warranted. And in keeping with that directive, it is the Secretary’s determination, not the correction board’s recommendation, that constitutes the

“final agency action” subject to judicial review, 5 U.S.C.

704, and that must be “set aside” if the reviewing court

determines that it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,”

5 U.S.C. 706(2)(A).

Contrary to petitioner’s contention (Pet. 21-22), the

statute’s further command that, subject to certain exceptions, “corrections shall be made by the Secretary

acting through boards of civilians,” 10 U.S.C. 1552(a)(1),

does not require a different conclusion. Particularly

read in light of the first sentence of Section 1552(a)(1),

which authorizes the Secretary to make decisions based

on what the Secretary “considers * * * necessary,” this

provision merely requires the Secretary to submit applications for corrections to a “board[ ] of civilians” in

the first instance, rather than immediately acting upon

them himself or delegating them to active-duty military

officers. Ibid. It does not further require him to defer

to those subordinate civilian officers’ recommendations.

A contrary reading that would require the Secretary

to adopt the recommendations of subordinate officers

who are appointed by, and serve at the pleasure of, the

Secretary, see 32 C.F.R. 723.2, would be illogical.

Providing for service secretaries to “act[ ] through” civilian boards, 10 U.S.C. 1552(a)(1), does not imply that

these secretaries are bound to follow instructions from

these civilian boards, any more than a principal “acting

through,” ibid., agents must follow the agents’ instructions or a court of appeals acting through three-member

panels may not revisit en banc any panel’s decision. If

Congress intended to invert the usual chain of command

of the Executive Branch, one would expect much clearer

language than is present here.

The court of appeals’ interpretation of the statute,

moreover, does not render Congress’s requirement that

the Secretary “act[ ] through boards” surplusage nor relieve the Secretary of the need to “create the Boards at

all.” Pet. 23. Rather, it means only that, although Section 1552(a) constrains the process by which the Secretary may reach a final correction decision, it imposes no

substantive limitation on the Secretary’s exercise of

his discretion beyond that he “consider[ ] it necessary to

correct an error or remove an injustice.” 10 U.S.C.

1552(a)(1). See Miller v. Lehman, 801 F.2d 492, 497

(D.C. Cir. 1986) (“Though section 1552(a) directs the Secretary to act through a civilian board, it leaves no doubt

that the final decision is to be made by him.”).

Nor is that interpretation inconsistent with any

other provision of Section 1552. As petitioner observes

(Pet. 23-24), in some cases, the Secretary need not act

through a correction board at all—namely, if the Secretary has determined to grant a servicemember’s request to enlist, re-enlist, or be promoted. 10 U.S.C.

1552(a)(2). In such cases, Section 1552(a) does not even

have to seek the Board’s recommendation in the first

instance. Petitioner errs, however, by reading that narrow exception to Section 1552(a)(1)’s procedural requirement that the Secretary otherwise “act[ ] through

boards of civilians” to also mean that the general substantive authority granted the Secretary by Section

1552(a)(1) applies only in the same narrow circumstances. Nor do provisions referring to the Board making “a determination,” 10 U.S.C. 1552(a)(3)(D), mean

that the Secretary must accept any such determination.

Cf. Pet. 24. And the fact that the Secretary may initiate

the corrections process before the Board on behalf of a

group of servicemembers who were “similarly harmed

by the same error or injustice,” does not suggest that

the Secretary is thereby deprived of his authority to review the Board’s recommendation at the end of that

process. 10 U.S.C. 1552(b).

Finally, the court of appeals’ decision is also consistent with the legislative history of the Legislative Reorganization Act of 1946, 10 U.S.C. 1552. Petitioner

contends (Pet. 25) that Congress enacted the statute because (1) “Congress was not properly equipped to handle the volume of requests” and (2) “Congress was concerned that military members did not receive the same

legal and procedural protections in the military justice

system that they would be entitled to in civilian courts.”

Both concerns could explain why Congress provided for

boards of civilians to accept applications, hold hearings

where servicemembers could be represented by counsel, hear witnesses, receive evidence, and issue written

reasoned decisions. See pp. 2-3, supra. But neither demands that service secretaries be required to adopt the

recommendations of those correction boards where the

record compiled in those proceedings is susceptible to

multiple reasonable interpretations. And despite petitioner’s concern for affording “near complete deference” to secretaries’ decisions, Pet. 27, the court of appeals’ decision establishes nothing more than that a service secretary is permitted to reject a correction board’s

recommendation if, and only if, the rejection satisfies

the ordinary APA standard of review.

2. Petitioner contends (Pet. 10-13) that the Federal

Circuit’s decision widens a conflict among the courts of

appeals. But the decision below reflects “the uniform

understanding of the Secretary’s power since the statute was enacted in 1946.” Strickland v. United States,

423 F.3d 1335, 1341 (Fed. Cir. 2005); see id. at 1340-1341

(“This interpretation of § 1552(a) is uniform across the

circuits.”) (citing, e.g., Neal v. Secretary of the Navy, 639

F.2d 1029, 1043 (3d Cir. 1981); Horn v. Schlesinger, 514

F.2d 549, 553 (8th Cir. 1975)). Petitioner fails to identify

any decision adopting or applying a different standard.

Most of the decisions on which petitioner relies

merely recognize—as the Federal Circuit did below—

that, while service secretaries are not bound by the recommendations of a correction board, they also may not

disregard them “arbitrarily.” See Neal, 639 F.2d at 1043

n.13 (“Although the decision of the BCNR is in the form

of a recommendation to the Secretary of the Navy who

‘will direct such action in each case as he determines to

be appropriate,’ he may not arbitrarily overrule the recommendations of the Board where its findings are justified by the record.”) (citation omitted); Horn, 514 F.2d

at 553 (noting that although “the Secretary is authorized, in a proper case, to overrule the Board’s recommendations, he cannot do so arbitrarily”) (citations

omitted); Champagne v. Schlesinger, 506 F.2d 979, 983

(7th Cir. 1974) (“Arbitrary rejection can result in judicial reversal of the Secretary’s decision.”); Hodges v.

Callaway, 499 F.2d 417, 423 (5th Cir. 1974) (“Moreover,

though the Secretary may overrule the Board’s recommendations for relief, he cannot do so arbitrarily.”) (emphasis omitted); Nelson v. Miller, 373 F.2d 474, 478 (3d

Cir.) (recognizing that while “Secretary of the Navy

[may] ‘direct such action in each case as he determines

to be appropriate[,]’ [h]e may not * * * arbitrarily overrule the recommendations of the Board where the findings of the Board are justified by the record”) (citation

omitted), cert. denied, 387 U.S. 924 (1967).

The other two decisions simply cite the Third Circuit’s decision in Neal—a decision that, again, is itself

consistent with the decision below—“as persuasive authority,” Pet. 12, in the course of discussions that do not

pertain to the Secretary’s authority to overrule the

Board’s recommendation at all. See Dibble v. Fenimore, 545 F.3d 208, 215 (2d Cir. 2008) (citing Neal for

the proposition that, when the Secretary adopts the

Board’s recommendation, the decision can be reviewed

judicially for arbitrariness and capriciousness); Blassingame v. Secretary of the Navy, 866 F.2d 556, 560 (2d

Cir. 1989) (citing Neal as an example of a case in which

“technical procedural irregularities in an administrative hearing” were “insufficiently prejudicial to justify”

the court’s vacating of the final decision).

3. Lastly, petitioner errs in suggesting (Pet. 13-19)

that a conflict within the Federal Circuit warrants this

Court’s review. Petitioner contends (Pet. 14-15) that

two early cases from the Court of Claims, the predecessor court to the Federal Circuit, constrained service

secretaries’ discretion to reject substantiated recommendations from civilian correction boards. See Proper

v. United States, 154 F. Supp. 317, 326 (Ct. Cl. 1957);

Weiss v. United States, 408 F.2d 416, 421 (Ct. Cl. 1969).

But as the decision below explained, Proper and Weiss

were rendered in the context of “service secretaries being influenced by—or outright adopting—the opinions

of military officers in rejecting otherwise substantiated

board recommendations.” Pet. App. 12a. In the absence of concern about undue influence by active-duty

military officers, the court of appeals correctly determined that “Proper and Weiss ‘have no application.’ ”

Id. at 13a (quoting Strickland, 423 F.3d at 1342). Indeed, even as Judge Reyna disagreed about the proper

resolution of the appeal, he did not disagree with the

panel majority on the correct standard of review to apply. Compare id. at 14a (majority opinion), with id. at

22a-28a (Reyna, J., dissenting). In any event, an intracircuit conflict would not warrant this Court’s review, see Wisniewski v. United States, 353 U.S. 901,

902 (1957) (per curiam), especially given petitioner’s

failure to request rehearing en banc.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.