Joseph Hoffler v. Charles Hagel
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-00063-D. Copies to all parties and the district court/agency . [15-2341]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH W. HOFFLER, Lieutenant Colonel, USAF-Retired,
Plaintiff - Appellant,
JAMES N. MATTIS, Secretary
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)
August 31, 2016
February 22, 2017
Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.
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Joseph W. Hoffler, a retired Lieutenant Colonel with the
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.”
judgment is appropriate when no genuine dispute of material fact
exists and the moving party is entitled to judgment as a matter
Fed. R. Civ. P. 56(a).
“Only disputes over facts that
might affect the outcome of the suit under the governing law
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.
Chappell v. Wallace, 462 U.S. 296, 303 (1983).
arbitrary, capricious, not based on substantial evidence, or not
Mickens v. United States, 760 F.2d 539, 541 (4th Cir. 1985); see
5 U.S.C. § 706(2) (2012).
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“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).
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
department . . . not to convene a special selection board.”
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
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
failed to consider the determination of an Equal Opportunity and
Treatment (“EOT”) inquiry that the investigation underlying the
LOR was flawed.
The AFBCMR expressly acknowledged
some of the conclusions of the EOT inquiry that Hoffler alleges
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investigation, it was faced with Hoffler’s own admission that he
committed the reprimanded conduct.
reinstate his Meritorious Service Medal, which was revoked in
Hoffler as to why the revocation of his medal was improper,
We concur with the district court that Hoffler has
failed to provide evidence that the discretionary decision to
revoke the medal was inappropriate.
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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