Miller v. Department of Navy

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.

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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

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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

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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.

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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

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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

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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).