United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2006 Decided January 19, 2007
No. 05-5343
ELIZABETH A. MILLER,
APPELLANT
v.
DEPARTMENT OF NAVY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00685)
Eugene R. Fidell argued the cause for appellant. With him
on the briefs was Matthew S. Freedus. Charlotte E. Cluverius
entered an appearance.
Edward Himmelfarb, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Peter
D. Keisler, Assistant Attorney General, Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Marleigh D.
Dover, Attorney.
Before: GARLAND and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Lieutenant Commander Elizabeth
Miller (“Miller”), then an active duty officer in the Judge
Advocate General Corps in the United States Navy, was
repeatedly considered for promotion to Commander but not
selected. After being passed over for the second time, Miller,
alleging gender bias and other procedural irregularities,
requested that the Navy convene a Special Selection Board
(“SSB”) to reconsider its decision. Under 10 U.S.C. §
628(b)(1), if the Secretary of the Navy determines, in the case of
a person who was considered but not selected for promotion,
that “there was material unfairness with respect to that person,
the Secretary may convene a special selection board . . . to
determine whether that person . . . should be recommended for
promotion.” The Secretary of the Navy (“Secretary”) denied
Miller’s request—a decision the District Court upheld, granting
the Navy’s motion for summary judgment as to her
discrimination claim. Because the Secretary relied on the wrong
section of the relevant regulation in deciding not to convene a
SSB, we reverse and remand to the District Court with
instructions to remand to the Secretary for reconsideration.
I.
Miller claimed a particular member of her 2001 promotion
selection board was “not impartial, was prejudiced in his
selection decisions, and violated the board’s precept and
guidance.” Specifically, Miller highlighted the member’s
alleged statement that Miller had been in a “difficult zone”
because there “were a lot of very competitive women in the
zone” that year, but that he thought she would have a better
chance of being promoted the following year “because the
women in that prospective zone were weaker.” Based
substantially on these allegations, Miller argued the board
3
member was biased against women and had imposed a cap on
the number of women who could be promoted. Miller also
asserted the board member ignored applicable precept guidance
concerning the effect on promotion of consecutive tours in the
same geographic area and violated his oath as a selection board
member by divulging details concerning the selection board’s
proceedings.
In response to Miller’s allegations, the Chief of Naval
Personnel ordered an investigation by the Navy Bureau of
Personnel Inspector General (“IG”). The investigation primarily
consisted of interviews with Miller, the accused board member,
and other individuals to whom Miller had disclosed certain
details concerning her alleged conversation with the board
member. The accused board member denied the substance of
Miller’s allegations, and the other interviews were
unilluminating. The IG therefore analyzed the selection board
statistics and the promotion board records (known as “tank
records”) to determine whether any actions taken by the board
indicated a general gender bias.
Based on its investigation, the IG found “unsubstantiated”
Miller’s allegations that the board ignored precept guidance and
that the board member had a gender bias that had influenced the
outcome of the board’s deliberations. Based on those findings,
the IG recommended that the Secretary “disapprove LCDR
Miller’s request for a Special Selection Board based on the fact
that there does not appear to have been any material error of fact
or material administrative error that likely deprived LCDR
Miller of a fair and impartial consideration” for promotion.
Joint Appendix (“J.A.”) 51.
Relying on the IG investigation and report, the Deputy
Chief of Naval Operations (“CNO”) likewise recommended
disapproval of Miller’s SSB request. In his memorandum to the
4
Secretary, the CNO identified the basis of Miller’s request as her
“allegations that a member of the board acted contrary to the
precept and the Constitution’s guarantee of equal protection
under the law and committed material error, depriving her of fair
and impartial consideration by the board.” J.A. 52, ¶ 2.
Referencing the IG’s investigation, the CNO explained that the
“‘she said-he said’ nature of the case made it impossible to find
factually . . . anything . . . in violation of the precept or
administrative guidance.” Id. ¶ 3. The CNO further opined that
“LCDR Miller was not selected due to her failure to perform at
a consistently outstanding level and her failure to perform in
arduous duty assignments rather than because of a board that
ignored the precept guidance.” Id. ¶ 4. Accordingly, the CNO
concluded Miller had not provided sufficient evidence to support
her claim under the applicable Navy regulation:
SECNAVINST 1401.1B authorizes convening of a special
selection board when [the Secretary] determines that an
officer was not recommended for promotion by a promotion
selection board . . . because the action of the promotion
selection board involved material error of fact or material
administrative error. It further defines a material error as
any error of fact or administrative/procedural error that is
more likely than not to have deprived the officer concerned
of a fair and impartial consideration by the board. Based on
the evidence cited in the . . . IG investigation report, I could
not find proof of any material error of fact or any material
administrative error committed by the members of the
[2001] Active Duty Commander JAG Selection Board.
J.A. 52-53, ¶ 5.
Consistent with the recommendations of the IG and CNO,
the Secretary denied Miller’s request.
5
Miller filed suit in federal district court challenging the
Secretary’s decision. See Miller v. Dep’t of Navy, 383 F. Supp.
2d 5 (D.D.C. 2005). On cross-motions for summary judgment,
the district court reviewed the Secretary’s decision under 10
U.S.C. § 628(g)(1)(A), which authorizes a federal court to
review and set aside the Secretary’s decision not to convene a
special selection board if the court finds the decision arbitrary or
capricious, not based on substantial evidence, a result of
material error of fact or administrative error, or otherwise
contrary to law. Emphasizing the “highly deferential” nature of
its review of military promotion decisions, Miller, 383 F. Supp.
2d at 10 (citations omitted), the court granted summary
judgment in favor of the Navy, determining that Miller “fail[ed]
to establish that the Secretary of Navy’s actions, in affirming the
recommendation of [the] IG, were arbitrary or capricious, were
not based on substantial evidence, were a result of material error
of fact or material administrative error, or were otherwise
contrary to law,” id. at 12.
II.
We review the Secretary’s denial of Miller’s SSB request
under the same “arbitrary and capricious” standard applied by
the district court. See 10 U.S.C. § 628(g)(1)(A). Moreover, we
are obligated to apply this standard in an “unusually deferential”
manner when reviewing personnel decisions made by the
military. Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000)
(quoting Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514
(D.C. Cir. 1989)). We review the district court’s grant of
summary judgment de novo. Turner v. Dep’t of Navy, 325 F.3d
310, 313 (D.C. Cir. 2003).
III.
Congress has authorized the Secretary to convene a SSB to
6
reconsider a decision not to promote a candidate where
“material unfairness” tainted the original selection board’s
decision. 10 U.S.C. § 628(b). Section 628(b) defines “material
unfairness” as action of the board that was “contrary to law or
involved material error of fact or material administrative error,”
or a failure by the board to consider “material information.” Id.
§ 628(b)(1)(A)-(B). The statute does not elaborate as to what
standard of proof the Secretary should apply to “determine”
when material unfairness has occurred.
The Secretary has, however, promulgated regulations
establishing additional “principles” intended to guide the
determination. SECNAVINST 1401.1B(8)(c) (Apr. 25, 1997).1
The regulations explain that “contrary to law” means “[a]ny act
of a promotion selection board that deprives the officer
concerned of a constitutional or statutory right.” Id.
1401.1B(8)(c)(2). The regulations define “material error” as
“[a]ny error of fact or administrative/procedural error that is
more likely than not to have deprived the officer concerned of
a fair and impartial consideration by the board.” Id.
1401.1B(8)(c)(3).
Plainly, the gravamen of Lieutenant Commander Miller’s
request for a SSB was her allegation that one of the board
members acted “contrary to law”—that is, in violation of her
constitutional right to equal protection. Indeed, the CNO
memorandum correctly identified this as the basis of the IG’s
investigation. See J.A. 52, ¶ 2. Thus, the section of the
regulation properly at issue is SECNAVINST 1401.1B(8)(c)(2),
which defines “any act of a promotion selection board that
1
SECNAVINST 1401.1B was recently replaced by
SECNAVINST 1420.1B (Mar. 28, 2006). Although the relevant
provisions are substantially unchanged, it is the old regulation that
applies to this case.
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deprives the officer concerned of a constitutional or statutory
right” as “contrary to law.” Yet neither the IG report nor the
CNO memorandum purport to apply that section in making their
recommendations; instead, both documents recount and
explicitly rely on a standard taken from a different and wholly
inapplicable section of the regulation, namely, SECNAVINST
1401.1B(8)(c)(3). See J.A. 41, 50; 52-53, ¶ 5. SECNAVINST
1401.1B(8)(c)(3) provides the standard for evaluating claims
that the board committed a material error of fact or material
administrative error—not the “contrary to law” claim made by
Miller.
This error is significant because the regulation’s “material
error” standard contains a “more likely than not” standard of
proof, which the CNO memorandum and IG report explicitly
applied in reaching their conclusions. See J.A. 41, 50; 52-53, ¶
5. In contrast, the regulation’s “contrary to law” standard
contains no explicit standard of proof. See SECNAVINST
1401.1B(8)(c)(2). While it may be proper for the Secretary to
apply a preponderance standard in evaluating claims that a
selection board acted “contrary to law,” it should be as the result
of a conscious (and articulated) decision by the Secretary, not as
the result of relying on the wrong section of the regulation.
Because the Secretary relied on the wrong section of the
regulation in applying the “more likely than not” standard,
remand is necessary even under a “highly deferential”
application of the arbitrary and capricious standard. Remand
will permit the Secretary to issue a new decision based on the
correct section of the relevant regulation and indicate the
appropriate standard of proof for that section.2 Accordingly, the
2
Remand will also provide the Secretary an opportunity to
reconsider the appropriate content of the administrative record, in light
of the non-disclosure provision of the newly enacted 10 U.S.C. § 613a
8
district court’s grant of summary judgment in favor of the
Department of the Navy is reversed, and the case is remanded to
the district court with instructions to remand to the Secretary of
the Navy for reconsideration.
So ordered.
and its impact on the pre-existing “substantial evidence” judicial
review provision of § 628(g). See John Warner National Defense
Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, § 547,
120 Stat. 2083 (2006); see also Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951) (instructing “that courts consider the whole
record” in reviewing for substantial evidence); Walter O. Boswell
Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984).