Dibble v. Fenimore, No. 06-3307 (2d Cir. 2008)

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06-3307-cv Dibble v. Fenimore 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: March 20, 2008 Decided: October 7, 2008) Docket No. 06-3307-cv - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DONALD J. DIBBLE, Plaintiff-Appellant, v. JOHN H. FENIMORE, Major General, New York Air National Guard, Defendant, SECRETARY OF THE AIR FORCE, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, STRAUB, and KATZMANN, Circuit Judges. Appeal from a grant of summary judgment in favor of the 32 Secretary of the Air Force, by the United States District Court 33 for the Northern District of New York (Lawrence E. Kahn, Judge). 34 We hold that the doctrine of intramilitary immunity does not 35 preclude a federal court from reviewing a challenge under the 36 Administrative Procedure Act to a decision by the Air Force Board 37 for the Correction of Military Records. 38 district court correctly found that the Board s decision was not 1 We also hold that the 1 arbitrary, capricious, contrary to law, or unsupported by 2 substantial evidence. 3 4 5 6 7 8 9 10 11 12 13 14 We therefore affirm. DANIEL M. SCHEMBER, Gaffney & Schember, P.C., Washington, D.C., for Plaintiff-Appellant. PAULA RYAN CONAN, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York, on the brief), Syracuse, New York, for Defendant-Appellee. WINTER, Circuit Judge: 15 16 17 INTRODUCTION Donald J. Dibble is a former federal excepted service 18 technician with the New York Air National Guard ( Guard ) who was 19 denied reenlistment. 20 for Dibble s exercise of his constitutional and statutory rights, 21 including his advocacy as a union representative, Dibble applied 22 for administrative relief from the Air Force Board for the 23 Correction of Military Records ( Board ). 24 his application, Dibble filed the present action under the 25 Administrative Procedure Act, 5 U.S.C. § 702, against the 26 Secretary of the Air Force ( Secretary ).1 27 the Secretary s motion for summary judgment. Alleging that this denial was retaliation 1 When the Board denied Judge Kahn granted Dibble v. Fenimore, Defendant John H. Fenimore was dismissed from this action by this Court s decision in Dibble v. Fenimore, 339 F.3d 120 (2d Cir. 2003). 2 1 2 488 F. Supp. 2d 149 (N.D.N.Y. 2006). For the reasons stated infra, we conclude that the doctrine 3 of intramilitary immunity does not preclude judicial review of 4 the Board s decision and that the Board s decision was not 5 arbitrary or capricious, or unsupported by substantial evidence. 6 We therefore affirm. 7 8 9 BACKGROUND Dibble was formerly a staff sergeant with the New York Air National Guard, a reserve component of the United States Air 10 Force. 10 U.S.C. § 10101(5). His position was that of a 11 federal excepted service Guard-Technician -- a dual-status, 12 hybrid position in which civilian employment is contingent upon 13 continued military membership. 14 (providing that a civilian technician must be a member of the 15 National Guard ).2 16 and authorizing Guard technicians). 17 Dibble also served as a union steward for the Association of 18 Civilian Technicians at Stewart Air National Guard Base. 19 May 1994 the Guard notified Dibble that he would not be allowed 32 U.S.C. § 709(b)(2) See also 32 U.S.C. §§ 709(a),(e) (defining 2 From 1989 until 1992 In Guard-Technicians are uniformed servicemen and women who must hold the military grade specified by the service Secretary for their positions. 32 U.S.C. §§ 709(b)(3) & (4). GuardTechnicians were granted federal employee status by the National Guard Technicians Act of 1968, codified at 32 U.S.C. § 709, principally in order to provide them with uniform federal fringe and retirement benefits instead of benefits that varied from state to state. Singleton v. Merit Sys. Prot. Bd., 244 F.3d 1331, 1334 (Fed. Cir. 2001). 3 1 to reenlist when his enlistment expired in October 1994. 2 Guard cited Dibble s performance in a military capacity as 3 the reason for this decision. 4 eligibility for civilian employment with the Guard. 5 a) 6 The This act terminated Dibble s Factual Disputes The proper characterization of the events leading to the 7 denial of reenlistment is hotly disputed. 8 presented evidence to the Board that between 1990 and 1994 9 Dibble was involved in physical altercations with other Guard 10 members while on duty; sometimes intimidated other members of 11 his unit; threatened his superiors; propelled a knife across a 12 table at a fellow Guardsman; and committed various other 13 infractions. 14 another staff sergeant while the two were working on a platform 15 twenty feet above the ground. 16 that suspension when a hearing examiner found that the physical 17 contact was not sufficiently forceful or malicious to cause 18 death or serious injury. 19 observed that Dibble was an aggressive individual with an 20 intimidating demeanor, who, when administered the oath prior 21 to testifying, assumed a stance that gave the appearance of 22 impending hand to hand combat. 23 described him as running hot and cold with his ability to 24 handle authority or direction. 25 The government In one incident, Dibble was suspended for pushing Dibble successfully challenged Nevertheless, the hearing officer Dibble s supervisors also In May 1994, Dibble s immediate supervisor, Master 4 1 Sergeant John Maloney, strongly recommended that Dibble be 2 denied reenlistment. 3 anti-establishment, disruptive, and generally disobedient. 4 Based on personal observations of Dibble s commanding officer 5 and the recommendations of Dibble s past and present 6 supervisors, the Guard declined to allow Dibble to reenlist. 7 Dibble, by contrast, characterizes the Guard s version of the 8 facts as pretexts for an impermissible motivation - namely, 9 retaliation for Dibble s success in vindicating his and others 10 11 Maloney described Dibble as rights. Dibble offers a number of instances during the period from 12 1990 through 1993 in which he allegedly received hostile 13 treatment as a result of representing the interests of union 14 members and challenging management practices. 15 instances was an episode in which a supervisor allegedly 16 threatened to get [Dibble] on the military side because the 17 supervisor could not get him on the technician or civilian 18 side. 19 stating that many other Guard members had committed worse 20 infractions than Dibble and yet had been allowed to reenlist. 21 The signees further stated that Dibble had not been allowed to 22 reenlist because of his willingness to stand up and speak up 23 for himself and others, his highly effective service as a union 24 steward, and his success in defeating [an] attempt to suspend 25 him from his job. Among those Twenty-two fellow Guard members signed a document Dibble further claims that his supervisor 5 1 was aware of this hostility but told others that there was 2 nothing that could be done for Dibble s career. 3 Dibble himself claims that he was issued formal Letters of 4 Reprimand when others were merely orally counseled; that his 5 supervisors tried to suspend him for thirty days for conduct 6 that was less serious than that usually tolerated by management 7 (the alleged shoving of a co-worker on a platform twenty feet 8 in the air); and that his supervisors told other Guard members 9 to lie so that Dibble could be singled out for not complying 10 with safety regulations that, he claims, other Guard members 11 routinely ignored. 12 After being denied reenlistment, Dibble requested relevant 13 records concerning his performance. He received twenty-five 14 documents recording transgressions which Dibble asserts were 15 only minor -- e.g., tardiness, unexcused absences, and 16 infractions of uniform requirements. 17 fact that these incidents were even recorded indicates an 18 improper motive, because, he claims, such incidents usually 19 were either dealt with through discussion or ignored 20 altogether. 21 cracking down on him only after his union activities 22 accelerated. 23 or missed work due to illness, his supervisors would simply ask 24 him what had happened, but that this practice changed after he 25 became a union steward. According to Dibble, the Dibble also alleges that his supervisors started He maintains that prior to 1990, if he was late 6 1 Dibble also cites two instances of forgery in which the 2 men involved were punished but not denied reenlistment. 3 Finally, Dibble asserts that the government has produced no 4 document indicating that any other Guard member was denied 5 reenlistment for military performance comparable to Dibble s. 6 b) 7 Procedural History Dibble properly exhausted his intramilitary administrative 8 remedies. He first requested an investigation by the Air Guard 9 Inspector General, who upheld the denial of reenlistment as a 10 proper exercise of command prerogative. Dibble next sought 11 relief through two separate channels -- the federal courts and 12 the Air Force Board for the Correction of Military Records. 13 Dibble brought suit in the Northern District against John 14 H. Fenimore, the Commander of the New York Air National Guard, 15 asserting that the denial of reenlistment was in retaliation 16 for his constitutionally and statutorily protected activities 17 as a union steward.3 18 the doctrine of intramilitary immunity rendered Dibble s claim On an interlocutory appeal, we held that 3 Dibble claimed that he was denied reenlistment as a result of his exercise of (1) his right under 5 U.S.C. § 7102 to assist and act for a labor organization; (2) his right under 32 U.S.C. § 709(e)(5) (since recodified as 32 U.S.C. § 709(f)(4)) and Technician Personnel Regulation (TPR) 752 § 2-17, Element 6(b), to appeal (successfully) his thirty-day suspension from employment; and (3) his First Amendment right to associate in a union and to speak freely in furtherance of his and fellow employees rights. Dibble v. Fenimore, 339 F.3d 120, 122 n.3 (2d Cir. 2003) ( Dibble I ). 7 1 against the military commander non-justiciable. Dibble I, 339 2 F.3d at 125, 128. 3 regarding the justiciability of intramilitary suits, we refused 4 to insert the federal courts into military decisionmaking in 5 such an intrusive manner. 6 challenged a military personnel decision about fitness for 7 service, we concluded that adjudicating the claim would require 8 that the district court make a particularized inquiry into the 9 mindset of his superior officers, determining whether their While declining to adopt a categorical rule Id. at 128. Because Dibble s claim 10 various disciplinary actions were motivated by proper military 11 concerns or by the unconstitutional desire to stifle Dibble s 12 protected First Amendment activity. 13 I, the district court dismissed Dibble s claims against 14 Fenimore. 15 Id. Pursuant to Dibble Dibble also applied to the Air Force Board for the 16 Correction of Military Records for relief. 17 civilian review board with the authority to grant relief to 18 applicants who, inter alia, have demonstrated the existence of 19 a material error or injustice that can be remedied effectively 20 through correction of the applicant s military record. 21 C.F.R. §§ 865.2(a), 865.4(l)(4); see also 10 U.S.C. § 1552(a) 22 (authorizing the Secretaries of the military departments, 23 acting through civilian review boards, to correct military 24 records when necessary to correct an error or remove an 8 The Board is a 32 1 injustice).4 2 Dibble s application claimed that he had been denied 3 reenlistment in retaliation for his proper outspokenness, his 4 effectiveness as a technician union steward, and his having 5 defeated an improper effort to suspend him. 6 correction of his records to show that he was not denied 7 reenlistment; he was not discharged; he served continuously to 8 the present; he is entitled to back pay, benefits, and credit; 9 and he is eligible to reenlist. He requested a The Board denied his 10 application, finding insufficient evidence of error or 11 injustice to warrant corrective action. 12 Dibble filed a supplemental complaint in the Northern 13 District against the Secretary, seeking review of the Board s 14 decision under the Administrative Procedure Act ( APA ), 5 15 U.S.C. § 706. 16 that the Guard had found Dibble eligible to reenlist, a 17 document that only later was discovered to have been erroneous, 18 the district court held that the Board s decision was arbitrary 19 and capricious and remanded the case to the Board for further 20 administrative proceedings. 21 315, 321-22 (N.D.N.Y. 2000); Dibble v. Fenimore, 488 F. Supp. Based in significant part on a document stating Dibble v. Fenimore, 84 F. Supp. 2d 4 [The Board] is not an investigative body. 32 C.F.R. § 865.2(c). Normally, it determines cases on the record established prior to the application. However, the Board may, in its discretion, hold a hearing or call for additional evidence or opinions in any case. Id. 9 1 2d 149, 157 (N.D.N.Y. 2006) (noting that the relevant document 2 was the result of an administrative error ). 3 4 The district court also instructed the Board to answer the following five questions on remand: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 (1) Whether Plaintiff s Air Guard superiors were hostile toward him because of his past union activities; Dibble, 84 F. Supp. 2d at 322. 35 Board to make specific and numbered findings of fact, and (2) Whether Plaintiff s Air Guard superiors punished Plaintiff, but not other Air Guard members, for minor transgressions; (3) Whether Plaintiff s Air Guard superiors sought to suspend Plaintiff for purported misconduct that was far less serious than misconduct by other Air Guard members that they ignored; (4) Whether Plaintiff s Air Guard superiors desired to retaliate against Plaintiff because he defeated their attempt to suspend him; and (5) Whether Plaintiff s Air Guard superiors denied Plaintiff reenlistment in the Air Guard, and thus terminated his employment, for pretextual reasons that would apply to many Air Guard members who were not denied reenlistment -- pretextual reasons that were far less significant than misconduct by others who were not barred from reenlistment. The district court directed the 10 1 conclusions of law based on such factual findings, as to each of 2 Dibble s claims, taking special care to enunciate a reason for 3 its decision that the district court would be able to evaluate 4 under the APA s arbitrary and capricious standard. 5 Id. On remand, a majority of the Board again voted to deny 6 Dibble s application for relief. 7 findings: 8 9 The Board made five specific First, even though Dibble s superiors may have had some hostility to him on account of his union activity, in light of 10 all the evidence the Board was not convinced that this hostility 11 motivated the denial of reenlistment. 12 infractions of military discipline, the Guard s decision that 13 Dibble was not suitable for military service was neither 14 arbitrary nor capricious. 15 Given Dibble s numerous Second, the Board was not convinced that Dibble s superiors 16 had punished him but not others for minor transgressions. 17 Dibble had received a Letter of Reprimand when some others might 18 not have was, in the Board s view, more plausibly the consequence 19 of the fact that Dibble had a pattern of disciplinary 20 infractions. 21 That Third, it found that the Guard s attempt to suspend Dibble 22 for the incident on the elevated scaffold was not untoward, even 23 in light of the disciplinary handling of other Guard members. 24 Dibble s actions were inappropriate and in violation of 25 established safety procedures, while the incidents involving 11 1 other Guard members, unlike the applicant s repeated actions, 2 were not caused by the same individuals. 3 Fourth, the Board was not convinced that Dibble s superiors 4 had sought to retaliate against him because he had successfully 5 appealed his suspension for the incident on the elevated 6 platform. 7 of the documentation about Dibble s infractions had occurred 8 before the results of the appeal had been released, and Dibble 9 did not allege that those documented infractions had not in fact 10 11 The Board noted that the Guard s preparation of most occurred. Fifth, the Board did not find that the Guard s denial of 12 reenlistment was pretextual. 13 denied reenlistment because his conduct was not consistent with 14 that required of a military member. 15 there was no evidence suggesting that other Guard members with 16 extensive record[s] of bearing and behavior problems comparable 17 to Dibble s had been allowed to reenlist. 18 It found instead that Dibble was The Board also said that The Board concluded that Dibble had failed to demonstrate 19 that he had been the victim of an error or injustice. (One 20 Board member dissented, stating that he felt Dibble was denied 21 reenlistment in retaliation for his actions as a shop union 22 steward and/or to prevent his continued employment in his 23 civilian job. ) 24 After the Board issued this decision, Dibble filed a second 25 supplemental complaint in district court seeking to overturn the 12 1 decision. 2 with its instructions on remand. 3 58. 4 demonstrated numerous instances of misconduct and infractions of 5 military discipline occurring after Dibble s activity as a union 6 steward and before he was denied reenlistment, and thus that 7 denial of Dibble s reenlistment had a factual basis that has all 8 to do with military deportment and behavior, and little or 9 nothing to do with constitutionally protected activity. 10 11 The district court found that the Board had complied Dibble, 488 F. Supp. 2d at 156- The court also concluded that the administrative record Id. at 158-59. The court declined to address Dibble s claims that other 12 Guard members who had committed acts of insubordination or 13 misconduct had not been denied reenlistment, refusing to place 14 itself in the position of reviewing an entire series of military 15 personnel decisions from over a decade ago, and then presume to 16 tell military officials of the Executive Branch how best to hire, 17 retain, discharge or promote members of the United States Armed 18 Forces. 19 Board addressed Dibble s claims with respect to this issue and 20 explained why another Guard member, who was specifically 21 identified by Dibble, was stripped of supervisory authority and 22 reassigned as opposed to denied reenlistment. 23 The court also noted that the Board found that Dibble did not 24 present any evidence, nor was any contained in the record, that 25 the individuals about whom Dibble complained had records of Id. at 161. The court, however, both noted that the 13 Id. at 161 n.6. 1 behavioral problems that matched or exceeded his. 2 n.7. 3 4 5 Id. at 161 Dibble then brought this appeal. DISCUSSION a) Justiciability and Intramilitary Immunity We first address the threshold question of whether the 6 doctrine of intramilitary immunity bars us from reviewing the 7 Board s decision to reject Dibble s application for relief. 8 The doctrine of intramilitary immunity emerged from the 9 Supreme Court s holding, in Feres v. United States, 340 U.S. 135 10 (1950), that the Federal Tort Claims Act ( FTCA ) does not permit 11 military personnel to sue the United States government for 12 compensation for injuries that arise out of or are in the course 13 of activity incident to service, even if those injuries would be 14 otherwise actionable under the FTCA. 15 reasoning in Feres was confined to the FTCA, but, as we noted in 16 Overton v. New York State Division of Military & Naval Affairs, 17 373 F.3d 83 (2d Cir. 2004), subsequent judicial decisions have 18 significantly expanded the intramilitary immunity doctrine and 19 it now generally protects the government from suit for injuries 20 arising from activit[ies] incident to [military] service. 21 at 89 (quoting United States v. Stanley, 483 U.S. 669, 681 22 (1987)); see also Chappell v. Wallace, 462 U.S. 296 (1983) 23 (holding that enlisted servicemembers could not bring Bivens- 24 style suits seeking damages from their superior officers for 25 alleged constitutional violations); Jones v. N.Y. State Div. of 14 Id. at 146. The Court s Id. 1 Military & Naval Affairs, 166 F.3d 45, 50-52 (2d Cir. 1999) 2 (holding the intramilitary immunity applies to suits for damages 3 under 42 U.S.C. § 1983). 4 In Dibble I, we held that the doctrine is not limited to 5 actions for damages but applies also to some claims for equitable 6 relief. Dibble I, 339 F.3d at 127-28. 7 of Dibble s suit against his military commander. 8 However, we also noted that the doctrine s scope is not 9 precisely defined, id. at 125, and we decline[d] to adopt a We thus ordered dismissal Id. at 128. 10 categorical rule on the justiciability of intramilitary suits. 11 Id. at 128. 12 The question here is whether the doctrine applies also to 13 suits for review of decisions of civilian review boards with 14 respect to military personnel decisions. 15 doctrine appears to be both an application of justiciability 16 concerns and a canon of construction that limits the reach of 17 statutes of general applicability into military affairs when 18 Congress has not explicitly provided for application to the 19 military. 20 counsels hesitation [before allowing Bivens actions for injuries 21 incident to military service] is 22 congressionally uninvited intrusion into military affairs by the 23 judiciary is inappropriate. ) (internal brackets and quotation 24 marks omitted). 25 review of agency decisions involving military affairs. Arguably it might. The Cf. Stanley, 483 U.S. at 683 ( The special factor that . . . the fact that The APA contains no explicit provision for 15 However, 1 we are bound by ample precedent that the intramilitary immunity 2 doctrine does not universally bar judicial review of decisions by 3 Boards for the Correction of Military Records. 4 In Falk v. Secretary of the Army, 870 F.2d 941 (2d Cir. 5 1989), we reviewed an Army Board for the Correction of Military 6 Records decision not to alter the officially stated reason for a 7 reservist s discharge. 8 866 F.2d 556 (2d Cir. 1989), we reversed dismissal of a former 9 Marine s claim against the Board for the Correction of Naval In Blassingame v. Secretary of the Navy, 10 Records concerning a petition to upgrade his military discharge 11 from undesirable to honorable. 12 the Air Force, 866 F.2d 1508, 1511-12 (D.C. Cir. 1989) (although 13 a claim for retroactive promotion was a non-justiciable military 14 personnel decision, alternative claims for the correction of 15 military records were justiciable); Watson v. Ark. Nat l Guard, 16 886 F.2d 1004, 1008 n.10 (8th Cir. 1989) (action taken by the 17 Army Board for the Correction of Military Records was reviewable 18 under the arbitrary and capricious standard); Neal v. Sec y of 19 the Navy, 639 F.2d 1029, 1037 (3d Cir. 1981)(decisions of boards 20 for the correction of military records can be reviewed judicially 21 for arbitrariness and capriciousness). 22 See also Kreis v. Sec y of This caselaw takes note of the facts that the Board is made 23 up of civilians and that it is authorized, with minor exceptions, 24 only to correct military records. 16 10 U.S.C. § 1552(a)(1); 32 1 C.F.R. §§ 865.1, 865.2(a).5 2 interferes only minimally with the cohesiveness and efficiency of 3 existing military hierarchies and operations. 4 do not review the Board s decisions de novo, but only under the 5 deferential standard of whether the decisions were arbitrary, 6 capricious, or unsupported by substantial evidence. Chappell, 462 7 U.S. at 303. 8 9 Thus, it has limited power and Moreover, courts The Secretary suggests that [i]t was arguably beyond even the broad authority of the Board to undertake such a 10 particularized review of the New York Air National Guard s 11 decisions involved in denying Dibble reenlistment. 12 Secretary also argues that the Board s detailed analysis of the 13 facts of this dispute, conducted pursuant to the district court s 14 instructions on remand, in essence required that the Board 15 inquire into the mindset of [Dibble s] superior officers, and 16 . . . determine whether their actions were motivated by the 17 unconstitutional desire to stifle Dibble s protected First 18 Amendment activity - precisely the inquiry this Court later 19 found to be non-justiciable by federal courts in Dibble I. 5 The The Board also has limited additional authority in the special case of whistleblowers. When an applicant alleges reprisal under the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board may recommend to the Secretary of the Air Force that disciplinary or administrative action be taken against those responsible for the reprisal. 32 C.F.R. § 865.2(b). Because Dibble is not invoking this Act, this additional Board authority is irrelevant to the case before us. 17 1 The Board s statutory authority to correct military records 2 includes injustice[s] as well as clerical errors. 3 inquiry ordered by the district court may be near the edge of the 4 Board s authority, it did not exceed that authority as recognized 5 in the caselaw discussed earlier. 6 F.2d at 559-60. 7 seek reinstatement, and, given the facts that the Board denied 8 relief and we leave that denial in place, there is no reason for 9 us to explore further the scope of the Board s authority. 10 b) While the See, e.g., Blassingame, 866 At this stage of the proceeding, Dibble does not Merits of Dibble s Claim 11 1) Standard of Review 12 As noted, rulings of a Board for the Correction of Military 13 Records can be set aside only if they are arbitrary, capricious, 14 or unsupported by substantial evidence. 15 303; see also 5 U.S.C. § 706(2). 16 Board s decision was arbitrary or capricious, a court may not 17 assess the wisdom of an agency s choice; inquiry is limited 18 instead to whether the Board has made a clear error of judgment. 19 Falk, 870 F.2d at 945. 20 decision was not supported by substantial evidence, if there is 21 such evidence as a reasonable mind might accept as adequate to 22 support a conclusion then the agency s decision must be 23 accepted even when the court would have drawn a different 24 conclusion from the evidence. 25 omitted). Chappell, 462 U.S. at In determining whether the And in determining whether the Board s Id. (internal quotation marks The deference that courts must show the agency s 18 1 decision increases when, as here, the decision involves a 2 military context. Id. 3 2) Claims 4 Our own review of the Board s decision cures two grounds for 5 reversal asserted by Dibble: (i) the district court improperly 6 relied on grounds that had not been asserted by the Board; and 7 (ii) the district court erred by not reviewing the Board s 8 conclusion that no punishment imposed on the grounds of enforcing 9 military discipline was actually based on a retaliatory motive. 10 We turn therefore to Dibble s claims that the Board applied the 11 incorrect legal standard in its review and that the Board s 12 rejection of Dibble s application was arbitrary and capricious, 13 unsupported by substantial evidence, and contrary to law. 14 The Code of Federal Regulations requires that applicants 15 before the Air Force Board for the Correction of Military Records 16 provide sufficient evidence of probable material error or 17 injustice. 18 Board s review of the Guard s decision erred in applying an 19 arbitrary and capricious standard rather than reviewing for 20 probable material error and injustice. 21 32 C.F.R. § 865.4(a). Dibble contends that the The Board s report states that the Guard s conclusion that 22 Dibble was unfit for military service was neither arbitrary nor 23 capricious, from which Dibble concludes that the Board applied 24 the incorrect legal standard. 25 of the term arbitrary [and] capricious, the Board s overall However, despite the isolated use 19 1 analysis was fully consistent with the sufficient evidence of 2 probable material error or injustice standard. 3 concluded that it was not persuaded that [Dibble s] superiors 4 punished him, and not other [Guard] members for minor 5 transgressions ; concluded that it was not convinced the 6 applicant s superiors sought to retaliate against him because of 7 his successful appeal [of his suspension for shoving a co- 8 worker] ; and declared that it did not find that the applicant 9 was denied reenlistment for pretextual reasons that would apply 10 11 The Board to many Air Guard members who were not denied reenlistment. In discussing that final point, the Board referred to yet 12 another standard of review, asserting that [a]bsent a showing of 13 evidence that the denial of [Dibble s] reenlistment was an abuse 14 of the commander s discretionary authority, we find no basis to 15 overturn this decision. 16 analysis is the equivalent of an examination for material error 17 or injustice. 18 reenlistment because his conduct was not consistent with that 19 required of a military member. 20 administrative actions taken against Dibble and the decision not 21 to permit him to reenlist were based upon his repeated 22 violations of military standards. 23 of any evidence that suggests that any [Guard] member with an 24 extensive record of bearing and behavior problems comparable to 25 the applicant, was permitted to reenlist in the [Guard]. However, once again the Board s actual The Board stated that Dibble was denied The Board added that both the 20 The Board also noted a lack And, 1 in summarizing its findings and stating its recommendation, the 2 Board explicitly invoked the proper standard twice: 3 based on the additional documentation provided, we do not find 4 that the applicant has substantiated that he has been the victim 5 of an error or injustice, and A majority of the Board finds 6 insufficient evidence of error or injustice and recommends the 7 application be denied. 8 not apply an incorrect legal standard when conducting its review. 9 In summary, Accordingly, we find that the Board did Dibble s contention is that the Guard denied him permission 10 to reenlist because his superiors wanted to retaliate for 11 Dibble s exercise of his constitutional and statutory rights and 12 that the reasons of military suitability that the Guard gave were 13 pretexts for this impermissible motive. 14 Dibble asserts that because pretext is at issue, we should 15 determine whether the Board complied with the analytical approach 16 described in Mt. Healthy City School Distict Board of Education 17 v. Doyle, 429 U.S. 274, 287 (1977), for dealing with suits 18 alleging that termination of the plaintiff s employment was 19 retaliation for constitutionally protected conduct.6 6 The Secretary argues that because Mt. Healthy dealt with suits by civilian plaintiffs against civilian employers it should not be imported into a military context. The Secretary s contention about the general inapplicability of Mt. Healthy in a military context conflicts with MacFarlane v. Grasso, 696 F.2d 217 (2d Cir. 1982). In that case, we explicitly applied the Mt. Healthy analysis to a suit by an Army reserve officer who claimed that his application for an open position as a stock control officer in the Connecticut Army National Guard had been rejected in retaliation for his exercise of his First Amendment rights. 21 1 However, Dibble s Mt. Healthy argument is a red herring. 2 The Mt. Healthy procedure consists of three steps. In the first 3 step, the complainant must show that his conduct was 4 constitutionally protected. 5 complainant must show that this protected conduct was a 6 substantial factor - or to put it in other words, that it was 7 a motivating factor in the adverse employment decision. 8 the complainant successfully shoulders both of these burdens, 9 then in the third step the employer has the burden of showing, by In the second step, the If 10 a preponderance of the evidence, that it would have arrived at 11 the same employment decision even in the absence of the 12 protected conduct. 13 Mt. Healthy, 429 U.S. at 287. In the present case, the Board found against Dibble in the 14 second step. It stated that Dibble s reenlistment was denied 15 because his conduct was not consistent with that required of a 16 military member. In addition, all of the administrative actions 17 taken against him and the denial of his reenlistment were based 18 upon his repeated violations of military standards. 19 indistinguishable from the requirements of 32 C.F.R. § 865.4(a): 20 The applicant has the burden of providing sufficient evidence of 21 probable material error or injustice. 22 significance is in step three, which establishes a defense 23 available to employers who have been found to have acted on an 22 Step two is Mt. Healthy s 1 impermissible motive. 2 and what Mt. Healthy says about step two adds nothing to the 3 pertinent law applicable to Dibble, Mt. Healthy has no 4 independent significance in this matter. 5 Because Dibble never got beyond step two, Dibble offers a fusillade of unpersuasive arguments that the 6 Board s judgment was arbitrary, capricious, or unsupported by 7 substantial evidence. 8 Dibble s military performance were supported by such evidence as 9 a reasonable mind might accept as adequate to support a The Board s findings with respect to 10 conclusion that Dibble had failed to demonstrate probable 11 material error or injustice in the denial of permission to 12 reenlist. Falk, 870 F.2d at 945 (internal quotation marks 13 omitted). Among the considerations that the Board explicitly 14 noted were evidence that Dibble: 15 superiors, (ii) manifested a lack of judgment, (iii) was 16 aggressive and belligerent, and (iv) had committed repeated 17 infractions of Air Force regulations and military discipline. 18 (i) was disrespectful to his Dibble challenges the sufficiency of this evidence on two 19 grounds: the Board failed to consider significant, undisputed 20 evidence that favored Dibble, and the adverse evidence upon which 21 the Board had relied was a record created by Dibble s superiors 22 to provide a pretext. 23 Dibble supports these propositions principally with 24 assertions by various people that Dibble was disciplined for 25 actions that other Guard members were not disciplined for, and 23 1 that other Guard members who committed infractions that were at 2 least as serious as Dibble s were nevertheless permitted to 3 reenlist. 4 example, a superior threatening to get Dibble, and a colleague 5 saying that he had heard that Dibble s superiors were hostile to 6 him. 7 Dibble also recounts remarks made to him -- for Dibble s arguments depend upon three assumptions, each of 8 which is wrong. The first is that the Board must state in 9 writing each matter that it considered with an accompanying 10 analysis. Dibble asserts that failure to consider and make 11 written findings on all significant points is sufficient to 12 render a Board decision arbitrary and capricious, and Dibble 13 considers each one of the pieces of undisputed evidence 14 mentioned earlier to be significant and to have gone 15 unconsidered. 16 written findings about every piece of evidence that it 17 considered. 18 between the facts found and the choice made, and a court will 19 uphold a decision of less than ideal clarity if the agency s path 20 may reasonably be discerned. 21 Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974) (internal 22 quotation marks omitted); see also New England Health Care 23 Employees Union v. NLRB, 448 F.3d 189, 194 (2d Cir. 2006); 24 Frizelle v. Slater, 111 F.3d 172, 176-77 (D.C. Cir. 1997). 25 do policy considerations favor such a rule. However, the Board was not required to provide Agencies need only articulate a rational connection Bowman Transp., Inc. v. Arkansas- 24 Nor Requiring agencies 1 to give explicit notice of every piece of evidence that they 2 consider and find unpersuasive would merely multiply the length 3 of agency decisions, and the time taken in rendering them, with 4 no significant increase in clarity or utility. 5 Dibble s second erroneous assumption is that the Board s 6 deliberations did not include anything other than the results of 7 the Inspector General s inquiry, memoranda of records showing 8 Dibble s lack of judgment, and Dibble s own admitted lack of 9 military deportment. Dibble appears to have made this 10 assumption on the ground that those three items were the only 11 items mentioned in a list that the Board introduced with the 12 words in consideration of all the evidence in this case 13 collectively, i.e. . . . . 14 abbreviation i.e. ( that is ) rather than e.g. ( for 15 example ), Dibble reads the list as exhaustive and therefore as 16 indicating that the Board ignored all other evidence. 17 We disagree. Because the Board used the Latin Although i.e. , when used properly, would 18 indicate an exhaustive list, Dibble puts more weight on this 19 abbreviation than it can bear. An unfortunate fact of modern 20 American linguistic practice is that many Americans confuse 21 i.e. and e.g. 22 American Usage 421 (2003) ( I.e. is frequently confounded with 23 e.g. . . . ); H.W. Fowler, A Dictionary of Modern English 24 Usage 146 (Ernest Gowers ed., 2d ed. 1965) ( Non-latinists are 25 apt to think that it does not matter whether e.g. or i.e. is used See, e.g., Bryan A. Garner, Garner s Modern 25 1 . . . . ).7 2 was merely a slip becomes evident upon examination of the 3 surrounding text, where the Board immediately goes on to discuss 4 evidence that was not mentioned in that list - e.g., evidence of 5 Dibble s physical confrontation with a fellow Guard member on an 6 elevated scaffold and evidence of historical practices in issuing 7 Letters of Reprimand. 8 did not appear in the Board s list or receive explicit mention 9 elsewhere in the Board s report does not show that the Board 10 11 That the Board s use of i.e. rather than e.g. Thus, the fact that an evidentiary item failed to consider it. Dibble s third erroneous assumption is that undisputed 12 evidence is inherently weighty and persuasive. But the mere fact 13 that a piece of evidence is undisputed reveals nothing about how 14 relevant or probative it is. 15 speculation, and evidence of meager persuasive force remains weak 16 even if undisputed. 17 justification for giving many of the undisputed pieces of 18 evidence little weight. 19 generalizations, or hearsay, e.g., Dibble s account of being told 20 by a second person that a third person had said that he was 21 unable to help Dibble s career because [t]he pressure is way too Undisputed speculation is still In Dibble s case, there was ample Many were speculation, unsubstantiated 7 This error is not limited to amateurs. Bryan Garner notes: In two editions, Black s (5th & 6th) misused i.e. for e.g. in its entry for layman . . . . Bryan A. Garner, A Dictionary of Modern Legal Usage 307 (2d ed. 1995). 26 1 tough on the top on [Dibble]. Much of the evidence at issue 2 consists of general and conclusory statements made in a document 3 of unspecified origin signed by twenty-two Guard members. 4 the undisputed evidence indicating that Dibble s superiors had 5 a negative attitude toward him does not indicate whether the 6 cause of that disapproval was Dibble s exercise of his 7 constitutional rights or rather simply a belief that Dibble s 8 poor military performance was detrimental to his unit s 9 effectiveness. And In sum, the undisputed evidence is anything but 10 dispositive. 11 finding it to be of little import is neither arbitrary nor 12 capricious. 13 against the evidence cited in the Board s report, we find no 14 reason to conclude that the Board s decision lacked such 15 evidence as a reasonable mind might accept as adequate to support 16 [the Board s] conclusion. 17 quotation marks omitted). 18 19 In light of the tenuous quality of this evidence, And when this undisputed evidence is weighed Falk, 870 F.2d at 945 (internal We have considered Dibble s several other arguments and find them to be without merit. 20 CONCLUSION 21 For the foregoing reasons, the judgment of the district 22 court is affirmed. 23 27

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