Joseph Hoffler v. Charles Hagel

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-00063-D. Copies to all parties and the district court/agency [1000027837]. [15-2341]

Appeal: 15-2341

Doc: 40

Filed: 02/22/2017

Pg: 1 of 4

UNPUBLISHED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
Secretary of the Air Force,

of

Defense;

LISA

S.

DISBROW,

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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-2341

Doc: 40

Filed: 02/22/2017

Pg: 2 of 4

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.”
United

States,

95

F.3d

339,

348

(4th

Cir.

Randall v.

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.
Chappell v. Wallace, 462 U.S. 296, 303 (1983).
decisions

can

only

be

set

aside

by

this

See

The Board’s

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

Appeal: 15-2341

Doc: 40

Filed: 02/22/2017

5 U.S.C. § 706(2) (2012).

Pg: 3 of 4

“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

“review[ing]

a

military

determination

promotion
by

the

claims

is

Secretary

limited

of

a

military

department . . . not to convene a special selection board.”
U.S.C. § 628(g)(1)(A) (2012); see also § 628(h).

to

10

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
reprimand

in

denying

(“LOR”)

from

his
his

request
file.

He

to

remove

argues

a

that

letter
the

of

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

Appeal: 15-2341

it

Doc: 40

Filed: 02/22/2017

overlooked.

reasonably

in

acknowledged

Moreover,
refusing

Hoffler’s

to

we

Pg: 4 of 4

conclude

remove

attacks

on

the

that
LOR.

the

the

Board

While

procedure

the

of

acted
Board

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

speculation.

constitute

no

more

than

unsubstantiated

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

affirm as to Hoffler’s remaining claims.

promotion

claim

and

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

4