Deference in record-correction cases

The following excerpts are from the January 13, 2025 unanimous decision of the U.S. Court of Appeals for the Fourth Circuit in Dorado-Ocasio v. Wormuth (Wilkinson, J.):

[T]his 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.” Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989); see also Bolton v. Dep't of the Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 407 (6th Cir. 2019); Mahoney v. Del Toro, 99 F.4th 25, 34 (1st Cir. 2024). Our deferential standard in military contexts is “calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). Indeed, “[p]erhaps only the most egregious decisions [of the boards] may be prevented under such a deferential standard of review.” Kreis, 866 F.2d at 1515. This degree of deference is rooted in (1) the statutory language giving life to the ABCMR, (2) the judiciary's longstanding commitment and obligation to avoid unnecessary intrusion into the military chain of command, and (3) the most basic principles of judicial economy.

A.

In enabling military record correction boards, Congress granted significant discretion to military leaders. The ABCMR's governing statute provides that “[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1) (emphasis added). This language is permissive rather than mandatory. Ultimately, so long as she follows the provisions of relevant law, the Secretary of the Army can correct any record in a soldier's AMHRR for those reasons she deems appropriate.

Failure to defer to the ABCMR's decisions would render the Secretary of the Army's discretion effectively meaningless. Therefore, to avoid undermining the Board's congressional design, courts read the statute as “substantially restrict[ing] the authority of the reviewing court to upset the Secretary's determination.” Kreis, 866 F.2d at 1514.

Our conclusion that the statutory language requires considerable deference to the ABCMR's decision-making is hardly exceptional. We merely add to the chorus of our sister circuits, who have long held that “[i]n light of this [statutory] language, the review of military board judgments is ‘exceptionally deferential.’ ” Williams v. Wynne, 533 F.3d 360, 368 (5th Cir. 2008) (quoting Viles v. Ball, 872 F.2d 491, 495 (D.C. Cir. 1989)); see also Kreis, 866 F.2d at 1513; Bolton, 914 F.3d at 406-07; Mahoney, 99 F.4th at 34.

B.

The reasons for significant judicial deference to military decisions are multiple. The Framers of the Constitution left no doubt as to the Judiciary's limited authority in military affairs. To Congress, the drafters gave the power to “declare War,” to “raise and support Armies,” to “provide and maintain a Navy,” to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const. art I, § 8. To the Executive, the drafters gave the title of “Commander in Chief of the Army and Navy of the United States.” Id. art II, § 2; see also Saikrishna Prakash, Deciphering the Commander-in-Chief Clause, 133 YALE L.J. 1, 58-59 (2023). But to the Judiciary, the drafters left no such explicit power.

This omission does not enable federal courts to look away from gross abuses of military authority that violate constitutionally protected rights. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866) (holding that civilians cannot be tried by military tribunals when civilian courts remain open). However, when—as here—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. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). “[C]ourts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Dep't of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). The “responsibility” for handling the intricacies of military life “rests upon the Congress and upon the President of the United States.” Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 L.Ed. 842 (1953). “It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973).

Since the earliest days of our republic, the federal judiciary has avoided improvident interference with military affairs. Just three years after the Constitution's ratification, federal circuit courts in New York and Pennsylvania refused to make determinations regarding individual veterans' pensions under the Invalid Pensions Act of 1792—that administrative task was suitable for the Secretary of War, not Article III tribunals. See Hayburn's Case, 2 Dall. 409, 410 n.*, 2 U.S. 408, 1 L.Ed. 436 1792. And the Supreme Court has not deviated from the broader non-interference principle in the two centuries that have followed. For example, the Court has rejected the expansion of judicially implied causes of action to the military on the grounds that this would intrude upon Congress's regulatory authority. See, e.g., Chappell v. Wallace, 462 U.S. 296, 300-02, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); accord Lebron v. Rumsfeld, 670 F.3d 540, 549-50 (4th Cir. 2012). Our circuit has taken the additional step of limiting Section 1983 actions for injuries incident to service in order to “respect[ ] the delicate separation of powers necessary for [a] smooth and effective military.” Aikens v. Ingram, 811 F.3d 643, 649 (4th Cir. 2016) (framing this holding as an extension of the Feres doctrine).

Even when the Constitution does not expressly prohibit judicial review, prudential concerns have counseled hesitancy about intrusions into military affairs. The Supreme Court has long acknowledged that “the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). This “specialized community” is governed by its own unique codes and regulations—a “separate discipline from that of the civilian.” Orloff, 345 U.S. at 94, 73 S.Ct. 534. Officers are regularly tasked with making countless “complex[,] subtle, and professional decisions as to the composition, training, equipping, and control of [the] military.” Gilligan, 413 U.S. at 10, 93 S.Ct. 2440. Flexibility in such decision-making is critical to the maintenance of an effective, adaptable, and readily deployable fighting force.

Judicial involvement in this whole process raises the risk of hindrance to military discipline. See Blevins v. Orr, 721 F.2d 1419, 1423 (D.C. Cir. 1983). Indeed, as the Supreme Court noted in a decision whose age has not dimmed its pertinence:

An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer, and confidence among the soldiers in one another, are impaired if any question be left open as to their attitude to each other.

United States v. Grimley, 137 U.S. 147, 153, 11 S.Ct. 54, 34 L.Ed. 636 (1890); see Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (“The military must insist upon a respect for duty and a discipline without counterpart in civilian life in order to prepare for and perform its vital role.” (internal quotation marks omitted) (quoting Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975))). Military chains of command simply have no obvious civilian analog. Life and death do not often inhere in corporate decision-making.

Judicial deference serves to preserve respect for the chain of command when judicial review over a claim is permitted. See Farmer v. Mabus, 940 F.2d 921, 924 (5th Cir. 1991) (“[S]uits for injunctive relief, like those for monetary damages, must be carefully regulated in order to prevent intrusion of the courts into the military structure.”). Federal judges have neither the tactical skills of a Major General planning an operation, nor the logistical talents of a Sargeant Major assisting its execution. See Wu Tien Li-Shou v. United States, 777 F.3d 175, 181 (4th Cir. 2015) (“As judges, we are just not equipped to second-guess such small-bore tactical decisions. We are also ill-suited to evaluate more strategic considerations. We do not know the waters.”). On this, our sister circuits have long agreed. See, e.g., Blevins, 721 F.2d at 1423; Tirado-Acosta v. P.R. Nat'l Guard, 118 F.3d 852, 855 (1st Cir. 1997); Jones v. N.Y. State Div. of Military & Naval Affs., 166 F.3d 45, 50 (2d Cir. 1999); Farmer, 940 F.2d at 923; Alhassan v. Hagee, 424 F.3d 518, 525 (7th Cir. 2005); Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975).

Respect instilled for military decision-making in non-threatening environments can carry over to the realm of battle. One need only look to the circumstances of the present case to understand that day-to-day military operations are “a field foreign to our normal competence.” Horn, 514 F.2d at 553. Operation Inherent Resolve, in which CPT Dorado-Ocasio and her supervisors were engaged, is an extension of the “War on Terror”—a relatively new form of conflict, in a region halfway across the globe. How ordinary human tensions and shortcomings may affect this mission may not be immediately apparent. Technological capabilities, geopolitics, and intelligence gathering evolve daily. The judiciary was not designed to keep abreast of such changes. We were not trained to understand the objectives and processes of a Movement Control Team, the logistical unit which CPT Dorado-Ocasio commanded, nor the shifting performance goals that drove raters' and senior raters' OERs. It would thus be a mistake to “sit astride the top of the command pyramid,” and, without hesitation, substitute our judgments for those closer to the ground. Wu Tien Li-Shou, 777 F.3d at 181; see Austin v. U.S. Navy Seals 1-26, ––– U.S. ––––, 142 S. Ct. 1301, 1302, 212 L.Ed.2d 348 (2022) (mem.) (Kavanaugh, J., concurring) (“[T]he District Court, while no doubt well-intentioned, in effect inserted itself into the Navy's chain of command, overriding military commanders' professional military judgments.”).

The ABCMR, whose decision we review, is comprised of individuals with “far greater experience than this court in deciphering the content and effect of military regulations.” Navas v. Gonzalez Vales, 752 F.2d 765, 769 (1st Cir. 1985). ABCMR members are required to be “regularly employed in the executive part of the Department of the Army.” 32 C.F.R. § 581.3(c). They are repeat players with intimate knowledge of Army protocols, including OERs. Our deference simply reflects a comparative deficit. It is not wrong to recognize that the range of judicial comprehension is not limitless. See Orloff, 345 U.S. at 94, 73 S.Ct. 534.

C.

Deference to military review boards also reflects our obligation to conserve limited judicial resources. In 2023, a total of 92,791 officers served in the Army. 2023 Demographics – Profile of the Military Community, U.S. Dep't Def. 15 (2023). Thus, at a minimum, nearly one hundred thousand “annual” OERs are issued each year. And each branch of the Armed Forces has analogous evaluation procedures to the Army. The ABCMR and its cousins were designed not only to avoid intrusion of Article III courts into military affairs, but also to avoid “opening the floodgates” of litigation in federal courts. Grzyb v. New River Co., 793 F.2d 590, 592 (1986).

While deference does not eliminate our obligation to ensure that the ABCMR has acted appropriately, it does streamline our review process and ensure that time and energy are not spent unnecessarily on cases that the military has competently resolved. Indeed, it is a well-known principle that “there is an important judicial economy in deference.” Rhody v. State Farm Mut. Ins. Co., 771 F.2d 1416, 1422 (10th Cir. 1985) (McKay, J., concurring). The logic behind deference thus parallels that of administrative exhaustion requirements. See Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974) (“[W]e can guard ․ against inefficient use of judicial resources by requiring ‘finality’ within the military system and thus avoiding needless review.”).

In the case of OERs, the layers of review are onion-like. A rater's evaluation is often reviewed by a senior rater, a Commander, the ASRB, and the ABCMR before Article III courts even become involved. And where, like here, a “contested issue may first be litigated through established agency procedures,” deference is “particularly appropriate.” Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978). Failing to afford these reviewers proper deference risks encouraging an inevitable cohort of dissatisfied soldiers to continue their challenges in federal court. And if even a small fraction of OERs do elicit such challenges, the effect on judicial caseloads would be measurable. See McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir. 2001).

III.

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. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The explanation, however, does not have to be a “model of analytic precision.” Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (quoting Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995)). Rather, we will “uphold a decision of less than ideal clarity if the agency's path may be reasonably discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).

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IV.

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. See Dep't of Air Force v. Rose, 425 U.S. 352, 368, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). CPT Dorado-Ocasio's OER reflected her failure to respect the chain of command. She was ordered not to retaliate, warned of the consequences, and retaliated, nonetheless. Discipline of officers is a matter generally entrusted to the Army. We are not willing to import civilian values and rules into this context when multiple layers of review have found rational justifications for CPT Dorado-Ocasio's negative evaluation. Failure to give the ABCMR a wide berth would force us to inappropriately “tamper with the established relationship between [ ] military personnel and their superior officers.” Chappell, 462 U.S. at 300, 103 S.Ct. 2362. We are unwilling to do so. The judgment is affirmed.