Nicholas S. Stewart, Captain, United States Marine Corps v. James E. Mcpherson, Acting Secretary of the Navy, in His Official Capacity

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 2, 2020 Decided April 21, 2020

No. 18-5370

N
ICHOLAS S. STEWART, CAPTAIN, UNITED STATES MARINE
CORPS,
A
PPELLANT

v.

JAMES E. MCPHERSON, ACTING SECRETARY OF THE NAVY, IN
HIS OFFICIAL CAPACITY
,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00479)

Charles W. Gittins argued the cause and filed the briefs for
appellant.

Dana Kaersvang, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were Jessie
K. Liu, U.S. Attorney, and Abby C. Wright, Attorney. R. Craig
Lawrence and Marsha W. Yee, Assistant U.S. Attorneys,
entered appearances.

Before: T
ATEL and PILLARD, Circuit Judges, and
E
DWARDS, Senior Circuit Judge.

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Opinion for the Court filed PER CURIAM.
In this case, Marine Corps Officer Nicholas Stewart
challenges the Navy Secretary’s refusal to grant him a waiver
of statutory requirements that govern his eligibility for
incentive pay as “arbitrary, capricious, . . . or otherwise not in
accordance with law.” 5 U.S.C. § 706(2) (A). Aviation career
incentive pay (ACIP) is a monthly cash benefit given to certain
armed servicemembers who regularly fly aircraft as part of
their official duties. See 37 U.S.C. § 301a. As relevant here, to
be entitled to ACIP, servicemembers must be assigned flight
duties for eight of the first twelve years of their careers, a
requirement the parties refer to as a “flight gate.” By statute,
the Secretary may waive the flight gate “[f]or the needs of the
Service” “so long as the officer has performed” flight duties
“for not less than 6 years.” Id. § 301a(a)(5). A Navy regulation,
SECNAV Instruction 7220.87, further provides that the
Secretary is “authorized . . . to waive ACIP flight gate
requirements for aviators who are unable to meet their gates
due to reasons beyond their control.” SECNAV Instruction
7220.87(4) (July 13, 2009), Joint Appendix (J.A.) 74. That
regulation also sets forth a waiver-request process: officers
“submit their requests via their chain of command,” and if the
chain of command “endorse[s]” the request, it forwards the
officer’s waiver “package” to the Assistant Secretary of the
Navy, who in turn “review[s]” the package “for content,
validity, and rationale,” and “forward[s]” it to the Secretary
“with a recommendation to approve, disapprove, or . . . return[]
to [the] . . . Marine Corps for further action.” Id. at
7220.87(5)(b)–(e), J.A. 75–76.
Stewart, who had accrued six years and fifteen days of
flight-duty time when he reached his twelve-year service mark,
sought a flight-gate waiver from the Secretary pursuant to
Instruction 7220.87. His chain of command supported the

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request, noting that, during Stewart’s twelve years of service,
he had been incarcerated or on appellate leave for
approximately thirty-one months due to a court-martial
conviction that was later set aside. It forwarded Stewart’s
package to the Assistant Secretary, who, finding the request
“within norms and appropriate,” forwarded it to the Secretary.
Action Memo from Juan M. Garcia, Assistant Secretary of the
Navy, Manpower and Reserve Affairs, to Secretary of the Navy
(Sept. 1, 2014), J.A. 45. The Secretary denied Stewart’s
request, offering no reason for his decision. See Letter from
Ray Mabus, Secretary of the Navy, to Deputy Commandant for
Manpower and Reserve Affairs (Feb. 13, 2015), J.A. 42.
Stewart challenged the unexplained denial in the district
court, which agreed that the Secretary’s failure to explain was
arbitrary and capricious and remanded the denial to the
Secretary “for further consideration and clarification.”
Stewart v. Stackley, 251 F. Supp. 3d 138, 141 (D.D.C. 2017).
In response, the Secretary adhered to the initial decision,
finding that “a waiver does not meet the needs of the service”
because (1) Stewart “barely meets the statutory 6-year
minimum for eligibility,” (2) he “has been consistently ranked
in the bottom two-thirds of his peer group,” and (3) his
“reviewing officers have evaluated him as performing better
than only about 18% of his peers.” Letter from Richard V.
Spencer, Secretary of the Navy, to Deputy Commandant for
Manpower and Reserve Affairs (Dec. 19, 2017), J.A. 31–32.
The Secretary rejected the notion that Stewart would have met
the flight gate if not for his criminal case, noting that Stewart
was out of “flight status” before his unlawful conviction and
again after its reversal. Id., J.A. 32.
Returning to the district court, Stewart argued that the
Secretary’s denial violated Instruction 7220.87 and that it was
substantively arbitrary and capricious. See Stewart v. Spencer,

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344 F. Supp. 3d 147, 154–58 (D.D.C. 2018). The district court
rejected Stewart’s claims and entered summary judgment in the
Secretary’s favor. As to Stewart’s procedural claim, the district
court concluded that none of the Secretary’s actions violated
Instruction 7220.87 and, in the alternative, that Stewart failed
to demonstrate prejudice from any alleged procedural
violation. Id. at 155. As to his substantive claims, the district
court found that the Secretary’s decision “was accompanied by
a ‘reasoned evaluation of the relevant information,’” id. at 156
(quoting Marsh v. Oregon Natural Resources Council, 490
U.S. 360, 385 (1989)), and, further, that “it [was] reasonable
for the Secretary to have relied on [Stewart’s personnel
records]” in denying the waiver, id. at 158.
Stewart now appeals. “We review the district court’s
decision to grant summary judgment de novo.” Aera Energy
LLC v. Salazar, 642 F.3d 212, 218 (D.C. Cir. 2011). As Stewart
acknowledges, our review of the Secretary’s actions is
“‘unusually deferential.’” Appellant’s Br. 9–10 (quoting
Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1514 (D.C.
Cir. 1989)).
As an initial matter, the government argues that Stewart’s
challenge to the waiver denial is unreviewable. See Kreis, 866
F.2d at 1515 (finding Air Force servicemember’s retroactive-
promotion claim “nonjusticiable”). We need not address this
argument insofar as it applies to the substance of the denial,
however, because Stewart has made clear he has abandoned his
substantive challenge. Specifically, in his appellate briefs,
Stewart consistently characterizes his claim as procedural,
including in response to the government’s argument that the
waiver denial was “‘committed to agency discretion by law.’”
Appellee’s Br. 19 (quoting 5 U.S.C. § 701(a)(2)). At oral
argument, moreover, Stewart’s counsel confirmed that the sole
relief he seeks is to have the waiver-request process “done

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right . . . in compliance with the regulation,” not for the court
to find that the denial was inconsistent with the service’s needs.
Oral Arg. Rec. 23:25–30.
Stewart’s sole remaining claim on appeal, then, is
procedural. At oral argument, the government conceded that
the question whether the Secretary complied with the process
outlined in the applicable regulation is judicially reviewable.
See id. 21:29–32 (“[C]ompliance with the regulation is
reviewable.”). We may accept the concession because, contrary
to the government’s brief, see Appellee’s Br. 19 (referring to
“these barriers to jurisdiction”), this question of reviewability
is not jurisdictional, see Sierra Club v. Jackson, 648 F.3d 848,
854 (D.C. Cir. 2011) (“[A] complaint seeking review of agency
action ‘committed to agency discretion by law,’ 5 U.S.C.
§ 701(a)(2), has failed to state a claim under the
[Administrative Procedure Act], and therefore should be
dismissed under Rule 12(b)(6), not under the jurisdictional
provision of Rule 12(b)(1).”).
We therefore proceed to the merits of Stewart’s procedural
claim. Stewart argues that, on remand, Instruction 7220.87
required the Secretary to obtain fresh endorsements from
Stewart’s chain of command. We disagree. Nothing in the
regulation obligates the Secretary to seek updated
endorsements, and Stewart concedes that the Secretary “full[y]
compli[ed]” with the regulation when Stewart’s waiver
package was initially compiled, Reply Br. 7. In the “absence of
any specific [judicial] command,” moreover, agencies are
“generally free to determine in [their] discretion whether to
accept additional evidence” on remand. Butte County v.
Chaudhuri, 887 F.3d 501, 505 (D.C. Cir. 2018); see id. 505–06
(affirming Secretary of Interior’s decision to reopen informal
adjudication record). In this case, the district court’s remand
order contained no requirement that the Secretary obtain new

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endorsements, and Stewart gives us no reason to conclude that
the Secretary abused his discretion by relying on the old
endorsements or by considering Stewart’s performance data.
To be sure, as Stewart points out, by the time of the
remand, the signatory to the initial waiver denial, then-
Secretary Ray Mabus, “had moved on from his Government
service.” Reply Br. 12. But, contrary to Stewart’s argument, the
remand order directed “the Secretary,” not Mabus personally,
to provide “further consideration and clarification.” Stewart,
251 F. Supp. 3d at 141.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the Secretary.
So ordered.