We’ve been following the Salyer case, involving LtCol Dan Mori, USMC (Ret.). Now McClatchy’s Michael Doyle brings us word that today, Judge Leon of the United States District Court for the District of Colubmia ruled for LtCol Mori in his quest to win a new promotion board. That decision is available here. Mori v. Dep’t of the Navy, No. 07-2167 (D.D.C. Jan. 18, 2013). Judge Leon concluded that the Department of the Navy’s refusal to give him a special selection board was “arbitrary and capricious.” He remanded the case to SECNAV to convene a special selection board.
LtCol Mori’s request for a special selection board was based on the possibility that his zealous work as a military commission defense counsel in the Hicks case improperly prejudiced a previous selection board against him. Judge Leon found that SECNAV’s rejection of LtCol Mori’s challenge to the SSB was fatally flawed.
Judge Leon explained that SECNAV’s “decision to deny plaintiff’s SSB request cannot withstand scrutiny for two reasons. First, the decision simply fails to address certain elements of plaintiff’s evidence. Second, the Secretary improplery dismisses certain examples of plaintiff’s circumstantial evidence without explanation.” Regarding the first basis, Judge Leon observed that an “agency action that lacks explanation is a textbook example of arbitrary and capricious action.” While SECNAV need not address every aspect of a special selection board request “at length and in detail, . . . he must provide enough information to ensure the Court that he properly considered the relevant evidence underlying plaintiff’s request. . . . By providing no information whatsoever as to relevant evidence supporting plaintiff’s request, the Court cannot reasonably discern the Secretary’s decision-making process.”
As to the second basis for his decision, Judge Leon explained, “In the few instances where the SSB decision addressed plaintiff’s evidence, it improperly dismissed plaintiff’s circumstantial evidence as no evidence at all, without further discussion.” But circumstantial evidence can be just as probative as direct evidence and “is particularly important in bias and discrimination cases.” He concluded that SECNAV “failed to meet his obligation, and defendant cannot fill the holes in the Secretary’s decision by providing post hoc explanations in its briefs.”
Of course, since SECNAV denied the request for a special selection board, LtCol Mori was selected for promotion and was promoted. He has also retired. Perhaps a special selection board would result in an earlier date of rank, resulting in some additional past pay due to LtCol Mori.
[Disclosure: Judge Leon's opinion refers to SECNAV's failure "to address the recommendation of plaintiff's supervising officer that plaintiff's SSB request be approved." I was that supervising officer.]