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


CONE, GEORGE E.

v.

CALDERA, LOUIS


99-5110a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: George E. Cone, Jr. filed suit in  United
States District Court challenging the Army's refusal  to amend his
Officer Evaluation Report. The court concluded  that the Army's
refusal was arbitrary and capricious, and  directed the Army to
improve Cone's rating. We reverse.


I


Cone served as a captain in the United States Army and  commanded an
infantry company during the Persian Gulf  War.1 After the war, his
supervisors completed an Officer  Evaluation Report (OER) assessing
his performance from  June 14, 1990 to June 13, 1991. An OER is used
to evaluate  an officer's performance and career potential. See Army 
Regulation 623-105, at p 1-6(a) [hereinafter AR 623-105]. At  least
two of the officer's superiors prepare the report--a  "rater" who
directly supervises the officer and a "senior  rater" higher in the
chain of command. Id. p 3-1. Cone's  rater was his battalion
commander, Lt. Colonel Stephen S.  Smith. His senior rater was his
brigade commander, Colonel  James C. Riley.


The OER form contains blanks that require the rater and  senior rater
to provide both numerical and narrative assess- ments. Part VII of the
form is reserved for the senior rater,  who evaluates the officer "by
comparing the rated officer's  potential with all other officers of
the same grade." Id.  p 4-16(b). In Part VII(a), the senior rater is
to check one of  ten blocks that rank the officer's potential against
that of all  other officers of that grade. According to Army
regulations,  the evaluation is "based on the premise that in a
representa- tive sample of 100 officers of the same grade or grade 
grouping (Army-wide), the relative potential of such a sample  will
approximate a bell-shaped normal distribution pattern."  Id.2 This
means, the regulations continue, "that in a repre-




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n 1 Cone was promoted to major in October of 1996.


2 In a normal distribution, most of the data points are "clus- tered
near the mean, and the density or relative frequency of the 


sentative sample of 100 officers of the same grade or grade  grouping
(Army-wide) only one officer can reasonably be  expected to be placed
in the top block." Id. p 4-16(c).  Slightly more officers may be
ranked in the second block,  which represents the top 2-3% of Army
officers of that grade,  and so on. In a representative sample of 100,
it is expected  that the majority of officers will be rated in the two
middle  blocks. See J.A. at 147 (illustrative OER form). The senior 
rater must also write narrative comments addressing the  officer's
performance in Part VII(b) of the OER. See AR  623-105, at p


Once completed, the Army compares the senior rater's  assessment of the
officer to the senior rater's rating history  for all officers of the
same grade--known as the senior rater's  "profile." Id. pp 2-5,
4-16(d)(5)(a). "The purpose of the  profile is to place the rated
officer's OER in perspective by  revealing the senior rater's general
rating tendency." Id.  p 4-16(d)(5)(a). By comparing a specific OER to
the profile,  the Army can discern whether a particular officer
performed  above, at, or below the "center of mass"--i.e., the median 
ranking--of the officers ranked by the same senior rater.


In completing Cone's OER, senior rater Riley checked the  second block
from the top. Of eleven captains rated by Riley  during this period,
he ranked seven in the top block, three  (including Cone) in the
second block, and one in the third  block. See J.A. at 147. According
to this profile--which was  included in Cone's OER--Riley's
center-of-mass ("COM") 




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n numbers decreases with increasing distance from the mean."  David W.
Barnes & John M. Conley, Statistical Evidence in  Litigation 140
(1986). "If the frequencies with which the numbers  in the normal
population appear as the result of random experi- ments are plotted on
a graph, the figure resembles a bell-shaped  curve." Id.


3 The Army has recently altered its regulations and OER form,  and has
dispensed with the ten-block rating system. See Army  Regulation
623-105 (Apr. 1, 1998); DA Form 67-9 (Apr. 1, 1998).  The citations in
this opinion refer to the regulations and forms that  were in effect
at the time of Cone's evaluation.


was the top block. Cone's rating was therefore below center- of-mass
for the group even though he was rated in the  second-highest block,
which corresponds to the top 2-3% of  captains Army-wide.


Cone appealed his OER to the Officer Special Review  Board (OSRB),
which is charged with reviewing requests to  correct erroneous
military records. See AR 623-105, at  p 9-2(i). He contended that
"[t]he senior rater blocking ...  does not accurately portray my
potential and may penalize  me when viewed by future boards." J.A. at
144. As support  for this assertion, he supplied affidavits from Riley
and Smith  indicating that Riley "did not intend for [Cone's] OER to 
reflect below center of mass performance," and acknowl- edging that
Riley had failed "to tightly manage" his senior  rater profile. Id. at


The Special Review Board denied Cone's request. See  OSRB Decision at 4
(July 2, 1993) (J.A. at 143). The Board  rejected the affidavit from
Riley, noting that Army regula- tions preclude "statements from rating
officials that they did  not intend to evaluate as they did from
serving as the basis  for favorable action on appeals." Id.; see AR
623-105, at  p 5-32(b)(2), App. p N-2(b)(3). The Special Review Board 
also noted that Riley had submitted "virtually identical"  memoranda
in support of appeals by five other captains he  had similarly rated
below center-of-mass. 1993 OSRB Deci- sion at 2 (J.A. at 141).4
Although the Board recognized that  there "was a persistent failure by
the [senior rater] to man- age his profile for [captains] in such a
way as to preclude any  unintended below-COM ratings," it concluded
that Cone had  failed to adduce "clear and convincing evidence" (as
required  by the regulations) to rebut the "presumption of regularity"
 in the OER. Id. at 3-4 (J.A. at 142-43) (citing AR 623-105,  at p




__________

n 4 The Special Review Board further found that of nine below 
center-of-mass ratings made by Riley and processed by the Army 
between August 1990 and February 1992, he supported or offered  to
support appeals by at least seven of the subject officers. See  1993
OSRB Decision at 3 (J.A. at 142).


Relying on new statements from his rater and senior rater,  Cone once
again appealed to the Special Review Board and  the Board once again
denied Cone's request. See OSRB  Decision (July 29, 1994) (J.A. at
158-60). In particular, the  Board rejected Cone's claim that the
comments Riley wrote  in the narrative portion of the OER supported a
center-of- mass rating. Those words, the Special Review Board said, 
"are not comparable to" what Riley wrote regarding "other  officers
[whom] he did in fact place in the top block COM."  Id. Specifically,
the Board noted that Riley characterized  Cone as having "solid
potential," while he described those he  placed in the top block as
having "unlimited" or "outstanding  potential." Id. Similarly, while
Riley's recommendation re- garding Cone was "promote to major and
consider for [Com- mand and General Staff College] when eligible," for
the  others it was "promote to major and select for [Command and 
General Staff College] ASAP." Id. (emphasis added).


Cone next appealed to the Army Board for Correction of  Military
Records. See 10 U.S.C. s 1552(a)(1). Based on the  same evidence, Cone
urged amendment of his OER to reflect  a center-of-mass rating. The
Correction Board rejected his  appeal, concluding that, despite
Riley's inability "to establish  a ... profile for captains that
approximated a bell-shaped  normal distribution," Cone's rating
accurately captured Ri- ley's assessment of Cone's performance
compared to that of  other officers of the same grade. Correction
Board Decision  at 4 (Apr. 26, 1995) (J.A. at 128). The Board noted
that its  conclusion was also "supported by the type of comments used 
by the [senior rater] to distinguish between a top block officer  and


After losing before the Correction Board, Cone filed suit in  the
United States District Court for the District of Columbia,  alleging
that the Board's denial of his request violated the  Administrative
Procedure Act, 5 U.S.C. s 706(2)(A), and ask- ing the court to correct
his records.5 Specifically, Cone 




__________

n 5 Cone also challenged his nonselection to the Command and  General
Staff College, a challenge the district court found non- reviewable.
See Cone v. Caldera, 46 F. Supp. 2d 3, 7-8 (D.D.C. 


argued that Army regulations require a senior rater to rank  officers
along a bell-shaped curve, and that Riley's failure to  maintain a
profile hewn to that curve constituted arbitrary  and capricious
action. Although the district court found that  the regulations "do
not mandate that each senior rater main- tain a bell-shaped-curve
distribution," Cone v. Caldera, 46  F. Supp. 2d 3, 6 (D.D.C. 1999)
(internal quotation omitted), it  nevertheless held the Army's ranking
arbitrary and capri- cious, see id. at 7. After undertaking a
statistical analysis,  the court determined that "[t]he senior rater's
ranking of  seven captains in the top block is more than twenty
standard  deviations above the expected value," and that "the center
of  mass of an eleven-officer profile" could not "reasonably be 
located in the top block." Id. at 6-7. This, the court said, 
indicated that the Army had acted arbitrarily and capriciously  in
declining to amend Cone's OER "to reflect a center of  mass rating."
Id. at 7. The court ordered the Army to make  the necessary amendment,


II


The Secretary of a military department, acting through a  civilian
board, "may correct any military record of the Secre- tary's
department when the Secretary considers it necessary  to correct an
error or remove an injustice." 10 U.S.C.  s 1552(a). An officer's OERs
are presumed to be "adminis- tratively correct" and to "[r]epresent
the considered opinions  and objective judgment of the rating
officials at the time of  preparation." AR 623-105, at p 5-32. An
officer seeking a  correction must prove "clearly and convincingly"
that the  "presumption of regularity" in the preparation of
administra- tive records should not apply, and that "[a]ction is
warranted  to correct a material error, inaccuracy, or injustice." Id.
 p 9-7(a) (citing id. p 5-32); see Frizelle v. Slater, 111 F.3d  172,
177 (D.C. Cir. 1997) (noting "strong but rebuttable 




__________

n 1999). Cone has not pressed this claim on appeal, apparently  because
it became moot due to his subsequent selection to the  College. See
Cone Br. at 4.


presumption that administrators of the military, like other  public
officers, discharge their duties correctly, lawfully, and  in good
faith") (internal quotations omitted).


Although we have jurisdiction to review the decisions of the 
Correction Board,6 we do so under an "unusually deferential 
application of the 'arbitrary or capricious' standard" of the 
Administrative Procedure Act. Kreis v. Secretary of the Air  Force,
866 F.2d 1508, 1514 (D.C. Cir. 1989); see Kidwell v.  Department of
the Army, 56 F.3d 279, 286 (D.C. Cir. 1995).7  This deferential
standard 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. See Orloff v.
Willoughby, 345 U.S.  83, 94 (1953) ("Orderly government requires that
the judicia- ry be as scrupulous not to interfere with legitimate Army
 matters as the Army must be scrupulous not to intervene in  judicial
matters."). We review de novo the district court's  ruling, on
cross-motions for summary judgment, that the  Correction Board acted
arbitrarily and capriciously in this  case. See Frizelle, 111 F.3d at


Cone contends that Riley's failure to adhere to a bell-curve 
distribution, and the Army's refusal to correct that failure, 
constituted arbitrary and capricious agency action in violation  of
Army regulations. The regulations, however, do not re- quire adherence
to a bell-shaped curve; rather, they state a  "premise" upon which
senior raters are to base their evalua- tions:




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n 6 See Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1512  (D.C.
Cir. 1989) (citing Chappell v. Wallace, 462 U.S. 296 (1983));  see
also Frizelle, 111 F.3d at 176; Dickson v. Secretary of Defense,  68
F.3d 1396, 1401-02 & n.6 (D.C. Cir. 1995); Kidwell v. Depart- ment of
the Army, 56 F.3d 279, 283-86 (D.C. Cir. 1995).


7 Cone's appellate brief asserts that his incorrect OER also  violated
his rights under the Privacy Act, 5 U.S.C. s 552a(e)(5).  Neither
Cone's complaint nor the district court's opinion addresses  such a
claim, and we therefore do not consider it here.


The senior rater's evaluation is made by comparing the  rated officer's
potential with all other officers of the same  grade, or grade
groupings.... His or her evaluation is  based on the premise that in a
representative sample of  100 officers of the same grade or grade
grouping (Army- wide), the relative potential of such a sample will
approx- imate a bell-shaped normal distribution pattern.


AR 623-105, at p 4-16(b). As the district court itself said,  this
regulation does "not mandate that each senior rater  maintain a
bell-shaped-curve distribution" in each rating peri- od. Cone, 46 F.
Supp. 2d at 6 (internal quotation omitted).8  Nonetheless, the
district court concluded that Riley's rank- ings of his eleven
officers departed so radically from what  statistically would have
been expected as to prove that Riley  "violated p 4-16 in rating at
least some of the other captains  against whom Cone was compared." Id.
To reach this  conclusion, the district court applied a test of
statistical  significance to the distribution of Riley's rankings of
the  eleven captains. See id. at 6 & n.1.


Even without a statistical analysis, it is clear that Riley was  lax in
following the rating guidelines. The Special Review  Board itself
determined that, over a series of rating periods,  Riley exhibited "a
persistent failure ... to manage his profile  for [captains] in such a
way as to preclude any unintended  below-COM ratings." 1993 OSRB
Decision at 3 (J.A. at 142).  But Riley's inability to adhere to a
bell-curve distribution is  not sufficient to render arbitrary the
Army's refusal to cor- rect Cone's record. The Army anticipates, and
compensates  for, the fallibility of individual raters by requiring
that each  rater's personal profile (indicating the number of officers
he  or she has placed in each box during the rating period) be 
included in the OER of each officer he or she reviews. As 




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n 8 See also Cone, 46 F. Supp. 2d at 6 ("The Army correctly notes  that
... 'since there are thousands of captains in the Army, it is 
statistically possible that a particular senior rater may have a 
number of captains that he or she is senior rating that merit 
placement in the top block."') (quoting Def.'s Resp. to Pl.'s State-
ment of Facts p 41).


the regulations state, "[t]he purpose of the profile is to place  the
rated officer's OER in perspective by revealing the senior  rater's
general rating tendency." AR 623-105, at  p 4-16(d)(5)(a). Put more
bluntly, "[t]he profile is meant to  be an indicator of the senior
rater's tendency to inflate or  deflate ratings." Id. p 9-7(f). Hence,
anyone examining the  OER to determine the true ability of the officer
can take into  account whether his ratings have been rendered by an
"easy"  or "hard" grader. This is a reasonable response to the 
problem, and one which makes the Correction Board's refusal  to amend
Cone's OER reasonable as well.


Moreover, we would be hard pressed to find a reversible  "error" in
Cone's record even without the clarification provid- ed by the senior
rater's profile. Under the regulations, the  senior rater's obligation
is to compare "the rated officer's  potential with [that of] all other
officers of the same grade"  Army-wide. Id. p 4-16(b). The rating box
in which Cone  was placed represents the top 2-3% of all Army officers
of  the same rank. There is no evidence in the record that  Cone's
true abilities place him in the only higher category--a  category
reserved for the Army's top 1%. See id. p 4-16(c).  Indeed, the
principal flaw to which Cone points--Riley's  inability to adhere to a
bell curve--indicates only that Riley  tended to inflate his officers'
ratings above the curve: he  consistently placed most of his officers
in the top few boxes  on the rating chart, despite the instruction
that those boxes  be reserved for the top few percent of all officers
in the  Army. See, e.g., 1993 OSRB Decision at 3 (J.A. at 142) 
(noting profile periods in which Riley gave top-block ratings  to 22
of 61, 12 of 19, 6 of 11, and 26 of 32 captains). Although  this could
suggest that Cone's ranking should not have been  as high as the one
Riley gave him, it certainly does not  establish that he should have
been ranked even higher.9




__________

n 9 Cone notes that Riley wrote on the OER: "This evaluation  does not
reflect a downturn in performance, rather I have restarted  my
profile." J.A. at 147. Army regulations permit a rater to  restart his
profile when necessary to convey his intended evaluation  to selection
boards and personnel managers. See AR 623-105, at  p 3-12.1. Although
Riley's comment means that Cone's second-


In support of the contention that he was misrated, Cone  offers a
post-evaluation affidavit in which Riley states that he  "did not
intend for [Cone's] OER to reflect below center of  mass performance."
J.A. at 150. But the Correction Board  reasonably refused to credit
the affidavit on the basis of  Army regulations providing that
"[s]tatements from rating  officials that they did not intend to rate
[an officer] as they  did" will "not be used to alter or withdraw a
report." AR  623-105, at p 5-32(b)(2); see id. App. p N-2(b)(3). The
ratio- nale for these regulations is an understanding that raters  may
attempt to retract otherwise accurate assessments when  requested to
do so by their disappointed officers. Such post- hoc statements by
rating officials, the regulations explain,  "often reflect
retrospective thinking, or second thoughts,  prompted by an
appellant's non-selection or other unfavorable  personnel action
claimed to be the sole result of the contested  report." Id. The
Correction Board's refusal to credit Riley's  affidavit is
particularly reasonable in this case, given that  Riley had submitted
"virtually identical" memoranda in sup- port of the appeals of many
other captains who likewise  challenged the below center-of-mass
ratings he gave them  during the same time period. 1993 OSRB Decision
at 2 (J.A.  at 141). The Board reasonably regarded these memoranda  as
reflections of Riley's sympathy for the pleas of his subor- dinates,


Cone also asks us to consider affidavits, authored by senior  Army
officers, that contend that the adjectives Riley used to  describe him
in the narrative section of the OER indicate a  center-of-mass rating.
See J.A. at 96-99. Both affidavits  were written in November of
1998--after the district court  complaint was filed and long after the
close of the administra- tive proceedings. Because the affidavits were
not part of the  administrative record, we may not consider them on
appeal.  See Environmental Defense Fund, Inc. v. Costle, 657 F.2d 




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n block rating should not be regarded as a downturn in Cone's own 
performance, it says nothing about where he ranks in comparison  with
his peers.


275, 284-86 (D.C. Cir. 1981); see also Camp v. Pitts, 411 U.S.  138,
142 (1973). In any event, the affidavits are neither  sufficiently
specific, nor sufficiently authoritative, to affect the  result


In conclusion, we observe that the district court's remedial  order
reveals just what a quagmire we would enter were we  to uphold Cone's
challenge to his OER. The court directed  the Army to amend Part
VII(a) of Cone's report "to reflect a  center of mass rating." Cone,
46 F. Supp. 2d at 7. But how  should it be amended? Cone interprets
the court's mandate  as requiring that he be given a top-block rating,
see Cone Br.  at 34-35, as do we.11 Yet, as already noted, there is no
 evidence that Cone qualifies as one of the Army's top 1%.  Moreover,
even if Riley were guilty of rampant grade- inflation, there is no
evidence that the seven officers to whom  he gave top-block rankings
still did not merit higher rankings  than Cone. Thus, if Cone were
moved to the top block to  achieve a center-of-mass result, would not
those seven officers  have grounds for appeal, complaining that their
own compara- tive positions had been unfairly deflated? Indeed, would
not  the same be true for all captains, Army-wide, whose senior 




__________

n 10 By the same token, we decline to give any weight to the  Special
Review Board's conclusion that the words Riley used in  Cone's OER
were "not comparable" to the words he used to  describe other officers
whom "he did in fact place in the top block  COM." 1994 OSRB Decision
(J.A. at 159). The Army successfully  argued below that the court
should deny Cone discovery of the  OERs of the other officers upon
which this comparison was based,  even in redacted form, on the ground
that they were not part of the  administrative record before the
Correction Board. See Cone v.  Caldera, Civ. No. 97-168, slip op. at
2-3 (D.D.C. Aug. 21, 1998) (J.A.  at 33-34). But if that is true, then
the comparisons cannot provide  substantial evidence to support the
Board's decision. On the other  hand, if the comparisons were before
the Board, by keeping them  out of the appellate record the Army has
deprived this court of any  basis for concluding that the Board's
characterizations are valid.


11 The other alternative--lowering the ratings of some officers  now in
the top block in order to make the second block the center-
of-mass--would only further complicate the problem discussed in  the
following text.


raters had placed them in the top block? The knowledge that 
"correcting" Cone's grades would ultimately require us to  reassess
the relative rankings of his entire cohort--a task for  which a court
is spectacularly unsuited--only further con- firms the wisdom of
deferring to the reasonable judgment of  the Correction Board. See
Kreis, 866 F.2d at 1514 ("[T]he  alteration of a record may correct
one injustice only to  commit another, or perhaps only to incur some
other equally  significant institutional cost. All such balancing of
consider- ations is to be done by the Secretary, free of judicial
second- guessing."); see also Sargisson v. United States, 913 F.2d 
918, 922 (Fed. Cir. 1990) ("A court lacks the special expertise 
needed to review reserve officers' records and rank them on  the basis


III


At bottom, Cone argues not that he was graded too low in  comparison to
all officers of his rank, but that he did not get  the full benefit of
his superior's inflated grading curve. Be- cause we conclude that this
does not constitute cause for  requiring the Correction Board to amend
Cone's evaluation  report, we reverse the decision of the district
court.