Joseph Hoffler v. James Mattis

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-2341

JOSEPH W. HOFFLER, Lieutenant Colonel, USAF-Retired,

Plaintiff - Appellant,

v.

JAMES N. MATTIS, Secretary of Defense; LISA S. DISBROW, Secretary of the Air Force,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever III, Chief District Judge. (2:14-cv-00063-D)

Submitted: August 31, 2016 Decided: February 22, 2017

Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Matthew L. Fesak, Assistant United States Attorney, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Joseph W. Hoffler, a retired Lieutenant Colonel with the

United States Air Force, appeals the district court’s order

dismissing in part and granting summary judgment in part to the

Defendants in Hoffler’s action challenging the Air Force Board

for Correction of Military Records’ (“AFBCMR” or “Board”) denial

of Hoffler’s application for correction. For the reasons that

follow, we affirm in part and dismiss in part.

“We review a grant of summary judgment de novo, employing

the same standards used by the district court.” Randall v.

United States, 95 F.3d 339, 348 (4th Cir. 1996). Summary

judgment is appropriate when no genuine dispute of material fact

exists and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). “Only disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Decisions of the AFBCMR are final agency actions subject to

judicial review under the Administrative Procedure Act. See

Chappell v. Wallace, 462 U.S. 296, 303 (1983). The Board’s

decisions can only be set aside by this court if they are

arbitrary, capricious, not based on substantial evidence, or not

in accordance with law. Id.; Randall, 95 F.3d at 348;

Mickens v. United States, 760 F.2d 539, 541 (4th Cir. 1985); see

2 5 U.S.C. § 706(2) (2012). “In determining whether agency action

was arbitrary or capricious, the court must consider whether the

agency considered the relevant factors and whether a clear error

of judgment was made.” Ohio Valley Envtl. Coal. v. Aracoma Coal

Co., 556 F.3d 177, 192 (4th Cir. 2009).

Hoffler contends that the AFBCMR acted arbitrarily and

capriciously in rejecting his claim that he should have been

promoted to colonel by the 1984 promotion board. The scope of

judicial review of military promotion decisions is very limited.

Unless a special selection board (“SSB”) has been convened, our

jurisdiction over military promotion claims is limited to

“review[ing] a determination by the Secretary of a military

department . . . not to convene a special selection board.” 10

U.S.C. § 628(g)(1)(A) (2012); see also § 628(h). No SSB was

convened for Hoffler, and Hoffler did not request that one be

convened. Thus, we lack jurisdiction over Hoffler’s promotion

claim and must dismiss this portion of his appeal.

Hoffler also asserts that the AFBCMR acted arbitrarily and

capriciously in denying his request to remove a letter of

reprimand (“LOR”) from his file. He argues that the Board

failed to consider the determination of an Equal Opportunity and

Treatment (“EOT”) inquiry that the investigation underlying the

LOR was flawed. We disagree. The AFBCMR expressly acknowledged

some of the conclusions of the EOT inquiry that Hoffler alleges

3 it overlooked. Moreover, we conclude that the Board acted

reasonably in refusing to remove the LOR. While the Board

acknowledged Hoffler’s attacks on the procedure of the LOR

investigation, it was faced with Hoffler’s own admission that he

committed the reprimanded conduct.

Finally, Hoffler challenges the Board’s refusal to

reinstate his Meritorious Service Medal, which was revoked in

1985. Although the record contains various assertions by

Hoffler as to why the revocation of his medal was improper,

these assertions constitute no more than unsubstantiated

speculation. We concur with the district court that Hoffler has

failed to provide evidence that the discretionary decision to

revoke the medal was inappropriate.

Accordingly, we dismiss Hoffler’s promotion claim and

affirm as to Hoffler’s remaining claims. We dispense with oral

argument because the facts and legal contentions are adequately

expressed in the materials before this court and argument would

not aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART

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