UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GRANT, CAROLYN M.

v.

US AIRFORCE


98-5568a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Plaintiff Caro- lyn Grant
(Grant) sought to enjoin the United States Air  Force (Air Force) from
discharging her from the Air Force  Reserves. She claimed that, in
nonselecting her for reenlist- ment, the Air Force denied her due
process and violated the  Administrative Procedure Act, 5 U.S.C. s
702. The district  court denied Grant's motion for a temporary
restraining  order and granted summary judgment to the Air Force. For 
the reasons set forth below, we affirm the district court.


I.


Grant had been a civilian Air Reserve Technician and an  enlisted
member in the Communications Flight unit of the  459th Airlift Wing,
Air Force Reserves, since 1980. Air  Force regulations required Grant
to reenlist within six  months of December 7, 1997, the date of her
expiration of  term of service (ETS).1 Grant signed a reenlistment
contract  on June 4, 1997,2 three days before the six-month reenlist-
ment window opened. Although her unit commander, Lieu- tenant Colonel
Brad Buchanan, could have declared her ineli- gible for reenlistment
by nonselecting her before she signed  the reenlistment contract, see
Air Force Instruction (AFI)  36-2612 s 3.5.3, once the reenlistment
contract was properly  executed, Buchanan could not nonselect her. See


The Air Force attempted to void Grant's reenlistment  contract three
times. First, on June 10, Major Ted Covert,  the 459th Airlift Wing
Military Personnel Flight Commander,  concluded that Grant's
reenlistment contract was invalid be- cause she signed it prematurely.
On August 8 Grant was  informed that Covert had "voided out" her
reenlistment con-




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n 1 To be eligible for reenlistment an enlisted Air Force member  must
be "within 6 months of current ETS." Air Force Instruction  (AFI)
36-2612 s 2.1.


2 All dates occurred in 1997 unless otherwise noted.


tract. See Complaint p 12. Grant immediately met with  Covert who
informed her that her reenlistment contract had  been removed from her
record and that Buchanan had made  the decision to void it. Under the
applicable regulations,  however, neither Covert nor Buchanan was
authorized to void  her reenlistment contract. See AFI 36-2612 ss
4.5.1, 4.5.1.1.  Subsequently, on September 18, Chief Master Sergeant
Eva  Holland, Director of Military Personnel, 22nd Air Force,  voided
Grant's reenlistment contract. This attempt was also  invalid because
Grant had not yet submitted her statement of  circumstance explaining
why her contract should not be void- ed, as she was entitled to do
under the regulations. See id.  s 4.5.1.1. Finally, on October 31,
Holland again voided  Grant's reenlistment contract after Grant
submitted her  statement of circumstance.


On September 7 Buchanan nonselected Grant for reenlist- ment.3 Buchanan
notified Grant of her nonselection on Sep- tember 9 by letter and
accompanying package sent certified  mail.4 Grant failed to appeal her
nonselection to Military  Personnel Flight before the next Unit
Training Assembly, see  AFI 36-2612 s 3.5.5.1, and therefore waived
her right to 




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n 3 Different Air Force regulations govern the nonselection of a 
member for reenlistment and the voiding of a reenlistment contract. 
To nonselect a member for reenlistment, the unit commander 
"personally advises the member of the nonselection" and "advises  the
member in writing of the right to appeal nonselection under  paragraph
3.8 of this instruction." AFI 36-2612 s 3.5.3.2. A  member who has
been nonselected "must submit a written appeal to  [Military Personnel
Flight] by the next scheduled [Unit Training  Assembly] after the date
[he is] notified." Id. s 3.5.5.1. By  contrast, a reenlistment
contract is voided by a "numbered" (here,  the 22nd) Air Force
official. See id. ss 4.5.1, 4.5.1.1.


4 The letter and package were returned by the United States Post 
Office marked "refused." The mail carrier who attempted delivery 
testified that he specifically recalled delivering the certified mail
to  Grant at her apartment and that Grant refused both. Grant 
admitted that she refused to accept the package, see Complaint  p 17,
but denied that she refused to accept the certified letter. See 
Grant's November 18, 1997 Memorandum.


further review. Her only challenge to the district court's  grant of
summary judgment involves her reenlistment con- tract which she
maintains was not properly voided.5


II.


On appeal Grant argues that her reenlistment contract was  valid
because the three-day prematurity defect was cured on  June 7 when the
six-month period began (the Air Force  having failed to discover the
defect until June 10). We apply  de novo review "[w]here the decision
under review is the  district court's assessment of the legal
sufficiency of an  agency's action in light of the record." Dr
Pepper/Seven-Up  Cos. v. FTC, 991 F.2d 859, 862 (D.C. Cir. 1993)
(quotation  omitted). "[O]ur review ... is limited to determining
wheth- er [the Air Force's] decision is arbitrary and capricious." Id.


The record indicates that Grant did not raise her contract  claim
before the district court, either in her complaint or in  her
opposition to the Air Force's summary judgment motion.  At argument
Grant maintained that, by explicitly challenging  her nonselection in
her complaint, she also challenged by  implication the voiding of her
reenlistment contract because  "the nonselection issue which we are
not pursuing on appeal  and the contract issue were very closely
intertwined." Tran- script of October 20, 1999 Oral Argument 4; cf.
Reply Br. 3- 4. Although the district court addressed the reenlistment
 contract issue, see Memorandum Opinion 2 n.1, 17-18 ("the  plaintiff
contends that the Air Force acted arbitrarily and  capriciously when
it voided her reenlistment contract"), it is  not clear why the
district court mentioned the issue because,  in another footnote, it
indicated that it believed the contract  issue had been resolved. See
id. at 9 n.6 ("Grant now  concedes that the Air Force's final decision
of October 28  [sic], 1997 to void her reenlistment contract corrected
any  procedural defects in the original voiding of the contract.").




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n 5 Although Grant challenged her nonselection in her complaint  filed
in district court, she has not challenged it on appeal.


"Absent 'exceptional circumstances,' the court of appeals is  not a
forum in which a litigant can present legal theories that  it
neglected to raise in a timely manner in proceedings  below."6
Tomasello v. Rubin, 167 F.3d 612, 618 n.6 (D.C. Cir.  1999).
Nevertheless, assuming without deciding that Grant  properly preserved
her contract argument, her challenge fails  on the merits. The Air
Force complied with AFI 36-2612  when Holland voided Grant's
reenlistment contract on Octo- ber 31. Grant concedes that her
reenlistment contract was  voidable, see Petitioner's Br. 12, and that
the Air Force  ultimately properly voided the contract. See Reply Br.
2  (Grant "did not challenge the Air Force's pro forma proce- dural
compliance with its regulations in the third attempt to  void Grant's
contract"). She argues, however, that under the  holding in Vitarelli
v. Seaton, 359 U.S. 535, 545-46 (1959), the  Air Force's pro forma
compliance cannot cure its previous  error. In Vitarelli the Secretary
of the United States De- partment of the Interior dismissed an
employee on Septem- ber 10, 1954 because his "sympathetic association"
with Com- munist supporters posed a "security risk." Purporting to act
 pursuant to departmental regulations, the Secretary filed a 
"Notification of Personnel Action" on September 21, 1954  setting
forth the reasons for the employee's dismissal. The  employee then
challenged her termination as illegal and  ineffective because the
Secretary had failed to comply with  the regulations applicable to
dismissal for national security  reasons. Two years later, the
Interior Department, realizing  it had failed to comply with its
regulations, reissued the  notification, backdated to September 21,
1954 and described  as "a revision of and replac[ing] the original
bearing the same  date." The notification was identical to the
original except  that it omitted any reference to the reason for the
employee's  discharge or to the authority under which the discharge




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n 6 Although Grant appeared to challenge the contract voiding in  her
reply brief, see Reply Br. 11-12, our caselaw makes clear that  an
argument first made in a reply brief comes too late. See  Fraternal
Order of Police v. United States, 173 F.3d 898, 902-03  (D.C. Cir.


ance did not validly "revise" the initial defective dismissal.  Grant's
case is distinguishable. Holland's second voiding of  Grant's
reenlistment contract was not "a revision" of her first  attempt but
an entirely new action which addressed Grant's  statement of
circumstance as intended by the regulations.7  Thus, Holland properly
voided Grant's reenlistment contract  on October 31 and, unlike the
Interior Department in Vitarel- li, did so timely. The fact that the
Air Force erred in two  earlier attempts does not nullify its final,
and correct, voiding  of Grant's reenlistment contract in compliance
with AFI 36- 2612. Accordingly, the district court is


Affirmed.




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n 7 Holland's October 31st memorandum voided Grant's contract  "[a]fter
further review of the request to void the reenlistment  (including the
member's Statement of [Circumstance]) of Sergeant  Grant."