Opinion
Civil No. 04-388 (SBC).
April 25, 2005
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Theresa G. Battle ("Battle") sues the United States Navy Board for Correction of Naval Records ("the Navy Board") under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. Battle, the former wife of a retired United States Marine, challenges the Navy Board's July 31, 2001 decision to provide her a former spouse annuity under the Marine Corps' Survivor Benefit Plan. Battle contends the Navy Board decision violates her right to equal protection under the Fifth and Fourteenth Amendments. The Navy Board moves for summary judgment pursuant to Fed.R.Civ.P. 56, while Battle moves for a ruling on her constitutional question.
Battle fails to respond to the Navy Board's statement of undisputed facts as required by local rules. See L.R. 7(h); 56.1 (opposition to summary judgment "shall be accompanied by a separate concise statement of genuine issues" of material fact). The Navy Board informed Battle of the local rules in its summary judgment motion. See Dkt. No. 10. In addition, the court provided Battle with a Fox-Neal order delineating her obligations in responding to the summary judgment motion. See Dkt. No. 11. The Navy Board's statement of facts is deemed admitted. See L.R. 56.1, 7(h); Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Flowers v. Internal Revenue Serv., 307 F. Supp. 2d 60, 62 n. 1 (D.D.C. 2004).
BACKGROUND
The following facts are undisputed. Battle is the former spouse of retired Marine Corps Master Sergeant David Roscoe. On May 31, 1963, Roscoe retired from the Marine Corps. As part of his retirement processing, Roscoe instituted a survivor benefit plan naming Battle, then still his wife, as the irrevocable beneficiary of his Marine Corps retirement pay.
On September 28, 1987, Roscoe and Battle divorced. The divorce decree ordered Roscoe to maintain Battle's status as the irrevocable beneficiary under his survivor benefit plan. Neither Roscoe nor Battle sent a copy of the final divorce judgment to the Defense Finance and Accounting Service ("DFAS") within one year as required by 10 U.S.C. § 1448(b)(3). On November 22, 2000, Battle sent Roscoe's attorney a letter demanding proof that she was still the beneficiary. Following that correspondence, Roscoe first learned that he was required to inform DFAS within one year of his divorce to change Battle's beneficiary coverage designation from "spouse" to "former spouse." As a result, Battle was no longer the designated beneficiary.
On May 2, 2001, Battle filed a contempt action against Roscoe, alleging he violated the divorce decree. As relief, she sought direct payment of the survivor benefits or, alternatively, "to force [Roscoe] to make sure that [Battle] is named as beneficiary." See Navy Board Mem. Ex. A (Roscoe's Navy Board File). On May 22, 2001, Roscoe petitioned the Navy Board to correct his military records to reflect that he had made a timely election to continue Battle as his designated beneficiary. Roscoe indicated that it was always his intention to maintain Battle as his beneficiary, that he had continued paying the monthly premiums, and that he would be found in contempt of court unless his records were changed.
On July 31, 2001, the Navy Board determined Roscoe's records should be changed to cure an injustice and ordered the records corrected to reflect: (1) that Roscoe made a timely written request to convert his survivor beneficiary coverage for Battle; (2) that the request was received by cognizant authority and became effective September 23, 1988 — one year from the date of their divorce; and (3) that the request was in compliance with a court order — the divorce decree. On September 12, 2001, the Marine Corps informed the Navy Board that the corrective action was instituted.
DISCUSSION
I. Legal Standard
Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party meets its burden, the non-movant must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the opposing party; however, the non-movant must establish more than the existence of a mere scintilla of evidence in support of its position. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 252; Celotex, 477 U.S. at 325. The non-movant may not rely solely on allegations or conclusory statements, and if the non-movant's evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50; Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
II. Injury
Battle must establish injury and that she has been adversely aggrieved by the Navy Board's decision. See 5 U.S.C. § 702; TMC Techs., Inc. v. United States, No. 97-928, 1997 U.S. Dist. LEXIS 9793, *5-10 (D.D.C. June 23, 1997). Because Battle has suffered no cognizable injury, summary judgment must be granted.
Battle does not allege that she sought and was denied survivor benefits. Rather, Battle sucs the Navy Board for correcting Roscoe's records in a manner that entitles her to spousal benefits. It is unclear, therefore, how Battle has been harmed. While her pleadings are ambiguous, Battle makes the following generalized assertions pertaining to injury: (1) the correction unconstitutionally violates her right to equal protection under the Fifth and Fourteenth Amendments because it bars her access to state court where she has protection of a court order (presumably the divorce decree); (2) the decision demands she violate the law or "voluntarily forfeit 1/3 of her only income, placing her in dire jeopardy and violating her rights to `access to the Court;'" (3) the decision grants her "favoritism" over her peers. Battle Resp. at 1-3. The only relief Battle seeks in her complaint is a declaration that will allow her "access to State Court where [she][has] protection of a Court Order." Compl. at ¶ 8.
Favorable treatment does not constitute a deprivation of equal protection of law. Further, it is unclear how Battle believes she will benefit from a reversal of the Navy Board determination. Battle contends she has been barred access to state court. There is no evidence to suggest that the Navy Board order bars Battle's access to state court, except perhaps to the extent the order renders her contempt action moot. The contempt action is perhaps moot anyway, given that Roscoe is apparently deceased. In any event, the Navy Board's corrective action institutes the relief Battle requested in her contempt motion.
Roscoe's Navy Board file includes a June 26, 2001 letter from Battle to the Navy Board stating "I am not interested in the benefits, I prefer he be forced to buy my vested interest." See Navy Board Mem. Ex. A (Roscoe's Navy Board File). Perhaps Battle opposed the corrective action, and now seeks reversal of the Navy Board decision, because she desired a state court order finding her ex-husband in contempt and affording her some type of lump sum relief. Obviously, this presupposes the court would have issued a contempt finding and would have awarded this relief. Battle's position is speculative. She fails to acknowledge that the Navy Board correction grants her the relief sought in her contempt motion. By petitioning for correction, Roscoe managed to cure the harm and Battle was restored to her position as ordered by the divorce decree. Accordingly, Battle received what she was entitled to under the divorce decree. She fails to establish she is entitled to any additional relief. Further, she fails to establish she suffered a cognizable harm or a constitutional deprivation from the Navy Board decision. The summary judgment motion must be granted.
III. Decision was not Arbitrary and Capricious
Even if Battle were to establish injury from the Navy Board decision, the decision was not arbitrary or capricious and summary judgment is warranted. "The Secretary of a military department, acting through a civilian board, `may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.'" Cone v. Caldera, 223 F.3d 789, 792 (D.C. Cir. 2000) (citations omitted); see also 10 U.S.C. § 1552(a); 32 C.F.R. § 723.2(b). "For the most part, the Secretary must make these corrections by convening and acting through a civilian board, typically known as a Board for Correction of Military Records." Nation v. Dalton, 107 F.Supp. 2d 37, 41-42 (D.D.C. 2000). Claims challenging records correction decisions are justiciable. See Kreis v. Sec'y of the Air Force, 866 F.2d 1058, 1512 (D.C. Cir. 1989). Review of correction board decisions requires an "unusually deferential application of the arbitrary or capricious standard" of the Administrative Procedures Act. Cone, 223 F.3d at 793 (citations omitted). Accordingly, decisions regarding the correction of military records may be set aside if they are arbitrary, capricious or not based on substantial evidence. Id. at 1512-13, citing Chappell v. Wallace, 462 U.S. 296 (1993). The decision is reviewed to determine whether the decision-making process was deficient, not whether the decision was correct. See Dickson v. Sec'y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995).
There is no requirement that a records correction claim under § 1552(a) first be presented to the Navy Board for review. See e.g., Darby v. Cisneros, 509 U.S. 137, 154 (1993); Wilhelm v. Caldera, 90 F.Supp. 2d 3, 7 (D.D.C. 2000); Nation, 107 F.Supp. 2d at 43 n. 4.
The July 31, 2001 Navy Board order explicitly states that review of Roscoe's petition for correction demonstrated that corrective action was warranted to cure an injustice. Navy Board Mem. Ex. A (Roscoe's Navy Board File). In his petition for correction, Roscoe made clear that he always intended to maintain Battle's status as beneficiary, that he believed the designation he made upon retirement was irrevocable, that he had no idea he was required to change the coverage from "spouse" to "former spouse" within one year of his divorce, and that he was subject to contempt proceedings in state court. Id. The Navy Board concluded an injustice occurred and that Roscoe and Battle were penalized for their ignorance of a legal requirement. In doing so, the Navy Board reviewed a court order — the divorce decree — and corrected the records to effectuate the divorce decree's requirements. Finally, by correcting Roscoe's record to allow Battle to remain his survivor beneficiary, the Navy Board effected the relief Battle requested in her May 2, 2001 contempt motion. The Navy Board's decision to reinstate Battle's beneficiary status was not arbitrary or capricious because the Navy Board's determination that an injustice warranted corrective action was fully supported by the record.
CONCLUSION
The Navy Board's motion for summary judgment and Battle's motion for ruling on the constitutional question are granted. The July 31, 2001 Navy Board decision did not violate the Constitution.