In Dorado-Ocasio v. Averill, No. 24-1360 (4th Cir. Feb. 13, 2025), the Fourth Circuit holds that for review of an administrative action by an agency of the uniformed armed services, judicial review is merely for “a discernible path for its determination.”
Plaintiff Dorado-Ocasio is a captain in the United States Army. She challenged an adverse performance review, the Officer Evaluation Report (OER), up the administrative ladder of review. “She contended that the OER was (1) factually inaccurate, (2) contained unproven derogatory information, (3) was produced by a rater with a significant conflict of interest and personal bias, (4) did “not reflect an assessment of the performance of assigned duties and responsibilities against an understood set of requirements,” and (5) falsely alleged “defects in her character and leadership.” The final rung before judicial review was in the Army Board for Correction of Military Records (ABCMR), which sustained the evaluation. A challenge filed in U.S. District Court resulted in summary judgment to the Army.
The Fourth Circuit affirms. While allowing that the “arbitrary and capricious” standard attends most decisions in the realm of the Administrative Procedure Act, “this case involves no ordinary ‘arbitrary and capricious’ review. The ABCMR, and other military boards akin to it, are afforded ‘an unusually deferential application of the ‘arbitrary and capricious’ standard.”
“In enabling military record correction boards, Congress granted significant discretion to military leaders . . . . Ultimately, so long as [the Secretary] follows the provisions of relevant law, [they] can correct any record in a soldier’s AMHRR for those reasons . . . deem[ed] appropriate.”
While federal courts may not “look away from gross abuses of military authority that violate constitutionally protected rights,” when “no such rights are implicated, Article III courts best uphold their place in our constitutional system by deferring to their legislative and executive partners who possess ‘textually demonstrable constitutional commitment[s]’ of military authority.”
The insulation of military agencies from typical administrative review, holds the Fourth Circuit, respects the “unique codes and regulations” of the armed services, averts “hindrance [of] military discipline,” conserves judicial resources, “preserve[s] respect for the chain of command,” and discourages judicial incursions into “the realm of battle.” ABCMR members, the panel observes, “are repeat players with intimate knowledge of Army protocols, including OERs.”
“Given the deference due to the military’s decisions with regard to military personnel, we are constrained to affirm the judgment here. There must be some explanation providing a discernible path to the Board’s determination,” though it need not be a “model of analytic precision.”
In this case, “[t]he ABCMR clearly met this low bar. That the ABCMR analyzed the ‘relevant data- is beyond question. The Board’s discussion of the factual context of [Captain] Dorado-Ocasio’s OER spans nine pages . . . . The ABCMR’s decision explained that the available evidence did not credibly support claims of [her reviewer’s] lack of objectivity, any substantive or procedural errors in the evaluation process, or any factual inaccuracies . . . . We are therefore satisfied that the ABCMR’s discussion provided sufficient clarity as to its rationale for rejecting [Captain] Dorado-Ocasio’s application.”
“None of the above is to imply that military decision-making is invariably correct. It is not. The Supreme Court simply counsels that the risk of military error is presumptively outweighed by the risks run by deviation from the constitutional design. In upholding the ABCMR’s decision, we acknowledge that the effectiveness of an army unit depends upon the obedience that individual military personnel, whether enlisted or officer, have to the orders of their superiors.”
Paul Mollica's Federal Courts Blog 