Becky Roberts v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2013 Decided January 24, 2014

No. 12-5149

BECKY ROBERTS,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00706)

John B. Wells argued the cause and filed the briefs for

appellant.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued

the cause for appellees. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: ROGERS, Circuit Judge, and WILLIAMS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

2

GINSBURG, Senior Circuit Judge: Becky Roberts brought

suit in the district court challenging the refusal of the Board

for Correction of Naval Records to amend certain of her

fitness reports. Specifically, Roberts claimed that her raters

violated Navy directives and discriminated against her on the

basis of her gender, and that the Board’s failure to correct

these errors was arbitrary and capricious, in violation of the

Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A),

and deprived her of due process and equal protection, both in

violation of the Fifth Amendment to the Constitution of the

United States. Discerning no violation of the APA or of the

Constitution, the district court entered a summary judgment

for the Government, which we now affirm.

I. Background

Like most employees of the federal government, officers

of the United States Navy receive periodic performance

evaluations, called “fitness reports,” from their superiors. The

preparation of these reports was regulated at all times relevant

to this case by Bureau of Naval Personnel (Bureau)

Instruction 1610.10 (1995), which required that each officer’s

performance be graded by a superior officer on a scale from 1

(unsatisfactory) to 5 (exemplary) for each of several traits,

such as “Tactical Performance” and “Leadership,” and to

average the scores into an “individual trait average.” BUREAU

INSTRUCTION 1610.10 at A-8, A-20. The instruction advised

that: “For the majority of Navy people, most of the trait

grades should be in the 2.0 to 4.0 range,” but it did not limit

the award of scores. Id. The distribution of trait scores could

therefore vary substantially from one rater to another.

Presumably in order to limit the effect of this variance,

Bureau Instruction 1610.10 also required the rating officer to

make one of five recommendations relating to the

3

subordinate’s potential for promotion: “Significant

Problems,” “Progressing,” “Promotable,” “Must Promote,” or

“Early Promote.” Id. at A-12. The Instruction further advised

that the “recommendation should be consistent with the

performance trait grades, and may also take into account the

difficulty of the assignment and the reporting senior’s

judgment of the member’s likely value to the Navy in the next

higher grades.” Id. The rater’s ability to award strong

promotion recommendations, unlike his ability to award high

trait scores, was strictly limited: In no event could he

recommend more than 20% of the officers in the same rank,

or “summary group,” for “Early Promote;” the combined

percentage receiving recommendations of “Early Promote”

and “Must Promote” might also be capped, depending upon

the rank of the officers in a particular summary group. Id.

Roberts, then a Lieutenant Commander, reported to the

Office of Naval Intelligence (ONI) in February 1996. In

effect at that time was ONI Instruction 1610.2 (1996), which

provided “detailed command guidance in the administration

of [Bureau Instruction 1610.10] within the ... ONI.” ONI

INSTRUCTION 1610.2 at 1. Instruction 1610.2 specified that

the “promotion recommendation will be based on the

individual trait average,” id. at 4, and set forth a “baseline

guide ... to determine promotion recommendations,” id. at 5:

(1) 3.90 or above – Early Promote

(2) 3.50 to 3.89 – Must Promote

(3) 3.00 to 3.49 – Promotable

Id. “For example,” the Instruction explained, “if a member’s

trait average is 3.89, he/she will probably not be

recommended for ‘early promote.’” Id. Due to the upper

limit set forth in Bureau Instruction 1610.10, however, “if

greater than 20 percent of a summary group falls within the

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‘early promote’ range, those members with lower trait

averages may be recommended for ‘must promote’ instead.”

Id.

In Roberts’s first fitness report, for the period ending

October 1996, Captain J.R. Bentz gave her a trait average of

4.17 but classified her “Must Promote,” one notch below the

level available under the “baseline guide” quoted above. In

her next fitness report, for the period ending June 1997, the

same rating officer gave Roberts a higher trait average (4.33)

but a lower recommendation, viz., “Promotable.” In his

written comments Captain Bentz explained the lower

recommendation “in no way reflects a decline in her

performance, but a change in the number of officers in the

competitive category.” This explanation, however, was

incorrect; the size of the summary group had not changed. In

her third fitness report while at the ONI, for the period ending

October 1997, Roberts received a trait average of 3.83 but

again was deemed only “Promotable.” In her written

comments, the rater, Captain J.E. Darrah, noted: “New

Reporting Senior. Lower trait mark average does not reflect

decline in performance.”

In 1999 Roberts appealed her June and October 1997

fitness reports to the Board for Correction of Naval Records,

whose function it is to

determin[e] the existence of error or injustice in the naval

records of current and former members of the Navy and

Marine Corps [and] make recommendations to the

Secretary [of the Navy] or ... take corrective action on the

Secretary’s behalf when authorized.

32 C.F.R. § 723.2(b). Roberts claimed her June 1997 fitness

report was erroneous because, among other reasons, Captain

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Bentz gave her a lower recommendation for promotion than

the recommendation corresponding to her trait average in ONI

Instruction 1610.2. Roberts faulted her October 1997 fitness

report because, rather than evaluate each officer on his or her

merits, Captain Darrah had decided “to retain all officers in

[the] last promotion recommendation block for the brief ...

reporting period” July through October 1997.

In 2000 the Board denied Roberts’s petition. With

respect to the June 1997 report, the Board acknowledged that

Captain Bentz’s “stated reason for marking [Roberts]

‘promotable,’ which was a ‘change in the number of officers

in the competitive category,’ appeared” to be incorrect. The

Board was not persuaded, however, that Captain Bentz

“should have marked [Roberts] above any of the officers who

were marked ‘must promote’” or that ONI Instruction 1610.2

required him to do so. That Instruction, in the Board’s view,

merely provided “guidance concerning the relationship

between trait average and promotion recommendation; it did

not mandate a certain promotion recommendation for a

certain range of trait averages.” With respect to the October

1997 report, the Board determined there was insufficient

evidence to find Captain Darrah had resolved “to retain all

officers in their last promotion block.” Roberts did not seek

review of the Board’s decision.

As a result of these two contested fitness reports, Roberts

maintains, she was “passed over for Commander on the first

selection board to consider her,” which occurred in 2001. She

was nevertheless promoted to that rank a year later, and for a

time received sterling fitness reports. In May 2005, however,

Roberts again received a recommendation of “Promotable”

despite a trait average of 4.67. According to Roberts, the

rater, Captain W.F. Reiske, explained he gave her a lower

promotion recommendation because “another officer, a male,

6

was being screened for a third time by the Commander Sea

Screening Board and ... [Reiske] needed to help out ‘fellow

officers.’” Roberts was passed over for promotion to Captain

in 2009 and 2010.

In 2009 Roberts again appealed her June and October

1997 fitness reports to the Board; this time she also

challenged her May 2005 report. With respect to the two

1997 reports, Roberts substantially reasserted the claims made

in her 1999 petition but she offered some new evidence in

support of them. First, she submitted two letters of

recommendation from Captain Bentz, dated 2001 and 2004,

urging Roberts’s advancement and acknowledging his

“unfamiliarity with the long term impact of subtle influences

of the new fitness reporting system.” In addition, she

proffered the affidavit of a private investigator she had hired,

recounting supportive comments from Roberts’s former

colleagues and superiors.

With respect to the May 2005 report, Roberts claimed

Captain Reiske had discriminated against her on the basis of

her gender, citing Reiske’s alleged comment that he needed to

help out “fellow officers.” Roberts argued this was “strong

evidence of invidious discrimination since ‘fellow’ is

normally used in the male sense.”

The Board denied Roberts’s petition. It explained “the

evidence submitted was insufficient to establish ... probable

material error or injustice,” see 32 C.F.R. § 723.3(e)(2) (“The

Board may deny an application ... if it determines that the

evidence of record fails to demonstrate the existence of

probable material error or injustice”), and that “[i]n this

connection, the Board substantially concurred with the ...

advisory opinions” it had received from the Navy Offices of

Legal Counsel (OLC) and of Equal Opportunity (EOO). The

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OLC opined that Roberts had “offered no new and material

evidence” to warrant reopening her earlier challenge to her

1997 fitness reports, and there was insufficient evidence to

show Captain Reiske “was motivated to mark the [two male]

officers” above her “solely based upon their gender.” The

EOO noted Reiske had “not demonstrated a pattern of gender

discrimination.”*

Roberts brought suit in the district court, claiming the

Board’s refusal to correct her records deprived her of due

process because her 1997 fitness reports did not reflect her

entitlement under ONI Instruction 1610.2 to a promotion

recommendation matching her trait average, and deprived her

of equal protection because her May 2005 fitness report was

the product of gender discrimination. See Roberts v. United

States, 883 F. Supp. 2d 56, 63–66 (D.D.C. 2012). Roberts

also claimed the Board’s decision was arbitrary and

capricious, in violation of the Administrative Procedure Act

(APA), 5 U.S.C. § 706(2)(A), because it merely “rubber

stamped” the advisory opinions and because it was

unsupported by substantial evidence. Id. at 68–69.

The district court rejected Roberts’s claims. It first held

the Board did not deny her due process because ONI

Instruction 1610.2 “simply does not create an entitlement to

an ‘early promote’ recommendation for all members receiving

trait averages above 3.90.” Id. at 65. The court next held

Roberts had submitted insufficient evidence to “suggest[]

intentional discrimination on the basis of gender.” Id. at 67.

Finally, the court held the Board’s decision was neither

*

The Board also received and “substantially concurred with” two

other advisory opinions from offices other than the OLC within the

Navy Personnel Command.

8

arbitrary nor capricious because the Board was entitled to

“rely on advisory opinions without providing its own detailed

analysis of their correctness,” id. at 70, and because the

explanations in the advisory opinions and in the Board’s

earlier decision in 2000 provided a reasoned basis for the

Board’s 2009 decision, id. at 69–71. The district court

therefore entered summary judgment for the Government. Id.

at 71.

II. Analysis

We review the district court’s grant of summary

judgment de novo, which is to say we “review the

administrative action directly, according no particular

deference to the judgment of the District Court.” Holland v.

Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002). On

appeal Roberts again raises her APA, due process, and equal

protection claims.

A. APA Claim

The Secretary of the Navy, acting through the Board for

Correction of Naval Records, “may correct any military

record ... when the Secretary considers it necessary to correct

an error or remove an injustice.” 10 U.S.C. § 1552(a)(1); see

also 32 C.F.R. 723.2(b) (describing function of the Board).

The person seeking to correct a record must provide

“substantial evidence” in order to overcome the Board’s

presumption that “public officers,” including military officers,

“have properly discharged their official duties.” 32 C.F.R.

§ 723.3(e)(2). The Board may deny an application “if it

determines that the evidence of record fails to demonstrate the

existence of probable material error or injustice.” Id.

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It is the longstanding practice of this court to review a

decision of a military corrections board under an “unusually

deferential application of the ‘arbitrary or capricious’

standard” of the APA. Kreis v. Sec’y of the Air Force, 866

F.2d 1508, 1514 (1989); see also Piersall v. Winter, 435 F.3d

319, 324 (2006); Cone v. Caldera, 223 F.3d 789, 793 (2000).

Roberts urges us to reject this line of authority where, as here,

the decision is of a “personnel” rather than “operational,

strategic or tactical” nature; “the mere fact of military

context,” she argues, “is insufficient to require deference.”

The deference we recognized in Kreis turned, however, not

upon the “military context” but upon “the broad grant of

discretion” the Congress gave the Secretary in deciding

whether to correct a record. 866 F.2d at 1514. “It is simply

more difficult to say that the Secretary has acted arbitrarily if

he is authorized to act ‘when [he] considers it necessary to

correct an error or remove an injustice,’ than it is if he is

required to act whenever a court determines that certain

objective conditions are met, i.e., that there has been an error

or injustice.” Id. (quoting 10 U.S.C. § 1552(a)(1)). In any

event, even were we inclined to revisit Kreis, we have no

“authority to overturn a decision by a prior panel of this

Court.” La. Pub. Serv. Comm’n v. FERC, 522 F.3d 378, 390

(D.C. Cir. 2008). We therefore follow Kreis and limit our

inquiry to whether the “Secretary’s decision making process

was deficient, not whether his decision was correct.” 866

F.2d at 1511.

In order to pass even this modest scrutiny, the Board

“must give a reason that a court can measure ... against the

‘arbitrary or capricious’ standard of the APA.” Id. at 1514–

15. In its decision, the Board explained its conclusion as

follows:

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[T]he Board found that the evidence submitted was

insufficient to establish the existence of probable material

error or injustice. In this connection, the Board

substantially concurred with the comments contained in

the advisory opinions.

Roberts argues this explanation is inadequate because the

Board “needed to do more than state their agreement with the

[a]dvisory opinions.” By simply “rubber stamping” the

advisory opinions, Roberts argues, the Board was able to

ignore important evidence and arguments, including some she

had filed in direct response to the advisory opinions.

As an initial matter, we cannot fault the Board for relying

upon the advisory opinions it received. The Board is obliged

to provide a “reasoned explanation,” Dickson v. Sec’y of Def.,

68 F.3d 1396, 1404 (D.C. Cir. 1995), but any agency may

meet that obligation by referring the reader to “clearly

relevant sources other than a formal statement of reasons,”

Envtl. Def. Fund, Inc. v. EPA, 465 F.2d 528, 537 (D.C. Cir.

1972). Indeed, we have looked before to the reasoning of an

advisory opinion in upholding a decision of this very Board.

See Mueller v. Winter, 485 F.3d 1191, 1199 (2007) (affirming

reasonableness of the Board’s position where it had

“substantially concurr[ed]” in the view of the Navy Personnel

Command).*

*

Although the Board is free to rely upon the reasoning of an

advisory opinion, it must still provide sufficient guidance that its

“path may reasonably be discerned.” Bowman Transp., Inc. v.

Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); see

also Dickson, 68 F.3d at 1404–05. The phrase “substantially

concur” makes for a dim lantern. In a future case, the Board’s

“substantial concurrence” with internally inconsistent or conflicting

advisory opinions may make it difficult for the court to determine

11

The advisory opinion of the Navy OLC supplies the bulk

of the relevant analysis. The OLC first noted that the Board

had previously denied Roberts’s 1999 petition to correct her

June and October 1997 fitness reports. Because Roberts

“offered no new and material evidence that was not

previously considered or reasonably available at the time of

the prior application,” the OLC advised, the Board should

deny Roberts’s petition with respect to the 1997 fitness

reports “as matters previously considered and finally

adjudicat[ed] by the Board.”

Roberts rightly points out that she did in fact offer new

evidence with respect to the June 1997 fitness report, viz., the

letters of recommendation from Captain Bentz and the

affidavit of her private investigator, Kenneth Lord, recounting

his interview with Bentz. Although the OLC opinion did not

explicitly address this evidence, it implicitly – and correctly –

deemed it immaterial. In June 1997 Bentz recommended 7 of

the 13 members of Roberts’s summary group for “Early

Promote” or “Must Promote,” thereby hitting the 50% upper

limit for those combined categories. See BUREAU

INSTRUCTION 1610.10 at A-12 (upper limit based upon the

rank of the officers — here, Lieutenant Commander — in the

summary group). In order to raise Roberts’s recommendation

above “Promotable,” therefore, Bentz would have had to

reduce the recommendation of an officer rated either “Must

Promote” or “Early Promote.” Because Bentz did not

repudiate any of his ratings in his letters of recommendation

or in his putative hearsay statement to Mr. Lord, new

evidence was immaterial.

the Board’s reasoning. On the present record, however, the Board’s

route is adequately lit.

12

Although the Board had already addressed the issue in its

decision of 2000, the OLC opinion went on to consider

Roberts’s argument that ONI Instruction 1610.2 entitled her

to a higher promotion recommendation in June and October

1997. The OLC explained, consistent with the Board’s

reasoning in 2000, the Instruction “indicates that the overall

trait average should be used as a baseline guide and [is]

therefore not required to be determinative and binding.” The

OLC added, correctly we think, that the trait average could

not be determinative of the promotion recommendation

because the promotion recommendation, unlike the trait

average, is “constrained by the upper limits” in Bureau

Instruction 1610.10.

Roberts objects that ONI Instruction 1610.2 states “[t]he

promotion recommendation will be based on the individual

trait average,” ONI INSTRUCTION 1610.2 at 4; the word “will,”

she argues, means a rater must use only the trait average to set

the promotion recommendation as provided in the baseline

guide. Nowhere, however, does the Instruction say the

promotion recommendation must be based exclusively upon

the trait average; to the contrary, it explains the

recommendation “should also take into account the difficulty

of the assignment and the reporting senior’s judgment of the

member’s likely value to the Navy in the next higher grades.”

Id. at 5. A rater may depart from the baseline guide for either

of these reasons and indeed must depart from the baseline

guide if more than the allowed percentage of officers in the

summary group would otherwise get one of the two highest

recommendations. Under this scheme the baseline guide is

just that — a guide. It does not entitle an officer to a

particular recommendation on the basis of a particular trait

average.

13

The OLC then turned to Roberts’s contention that

Captain Darrah froze all officers at their previous

recommendation levels for the October 1997 fitness report.

The OLC advised, consistent with the Board’s decision in

2000, that Roberts had failed to present any corroborating

evidence and therefore did not meet her burden to “rebut[] the

presumption that [Darrah] follow[ed] Navy directives in

submitting the fitness report.” The OLC’s factual premise is

undoubtedly correct: Even on appeal, Roberts points to no

evidence in the record to support her contention aside from

her own affidavit alleging “the new reporting senior [Darrah]

stated that she wished to maintain all officers in the same

category during the abbreviated reporting period.” In effect

the OLC advised that an applicant’s unsupported allegation of

misconduct is insufficient to rebut the presumption of

regularity. We cannot say it was unreasonable of the Board to

adopt this position.

Finally, the OLC turned to Roberts’s argument that her

May 2005 fitness report was the product of gender

discrimination. The OLC noted Roberts had provided “no

corroborating evidence to substantiate her allegation” that

Captain Reiske said he was lowering her recommendation to

“Promotable” in order to help out “fellow officers.”

Assuming Reiske did make that comment, however, the OLC

advised:

The term ‘fellow officer’ in military parlance is gender

neutral and refers to both female and male officers.

Although the other two officers may in fact be male

officers, the statement alone does not show by substantial

evidence that the reporting senior was motivated to mark

the officers as [Early Promote] and [Must Promote]

solely based upon their gender.

14

We see no error in the OLC’s analysis. The OLC

correctly looked to whether the evidence showed Captain

Reiske was motivated by discrimination on the basis of

gender. Cf. Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265 (1977) (absent an overtly

discriminatory classification, “[p]roof of racially

discriminatory intent or purpose is required to show a

violation of the Equal Protection Clause”). Although the

word “fellow” may (or may not) mean “a man or boy” when

used as a noun, depending upon the context, see, e.g., Exec.

Order No. 11,183 § 2(c), 3 C.F.R. 256, 257 (1964–65)

(“White House Fellows shall be ... selected by the President

without discrimination on the basis of sex”), when used as an

adjective it simply means “in the same condition,”

WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY 673 (2d

ed. 1983). Ordinary usage thus supports the OLC’s assertion

that the term “fellow officer” is not at all indicative of bias on

the basis of gender.

The Board also received, and again substantially

concurred in, an advisory opinion from the Navy EOO

concluding Reiske “had not demonstrated a pattern of gender

discrimination.” Roberts argues this reference to a “pattern”

invokes “the wrong standard for review of gender

discrimination,” but she misreads the advisory opinion. The

EOO did not suggest Roberts was required to show a pattern

of gender discrimination by Captain Reiske; rather, it

explained the lack of any pattern favoring men over women in

his prior recommendations “demonstrated [Reiske’s]

willingness to recommend an Early Promote ... regardless of

gender.” A pattern of discriminatory action, in other words,

would have been probative evidence of discriminatory intent,

but there was no such pattern.

15

Roberts’s final APA argument is that the Board failed to

consider other evidence of Captain Reiske’s discriminatory

intent, including that the “two male officers were rated above

the two female officers;” that the two male officers, unlike

Roberts, “had not served in a combat area;” and the

supportive comments of her colleague, Marine Colonel

Francis Cubillo, as recounted by her private investigator.

None of this evidence is significant. That two male officers

were rated above two female officers goes to disparate

impact, which though “not irrelevant” cannot sustain

Roberts’s assertion of gender discrimination absent some

evidence of discriminatory intent. See Washington v. Davis,

426 U.S. 229, 242 (1976). That Roberts had more combat

experience than her male colleagues does not imply she

should have been recommended above them, or that Reiske

was motivated by gender discrimination in rating her below

them. The reported comments of Colonel Cubillo are

hearsay, but even if taken at face value they show simply that

Cubillo was of the opinion “Roberts should have been rated

the same as both” the male officers. Cubillo did not in any

way imply Reiske recommended the male officers ahead of

Roberts with discriminatory intent.

In sum, we hold the Board, drawing upon the advisory

opinions of the OLC and of the EOO, reasonably determined

“the evidence submitted was insufficient to establish the

existence of probable material error or injustice.” Roberts

presented no material evidence to show her June 1997,

October 1997, or May 2005 raters erred in giving her the

recommendation of “Promotable;” nor was she entitled by

ONI Instruction 1610.2 to a higher promotion

recommendation based upon her trait average. The decision

of the Board was neither arbitrary nor capricious nor

unsupported by substantial evidence, in contravention of the

APA.

16

B. Due Process Claim

In order to make out a violation of due process, the

plaintiff must show the Government deprived her of a “liberty

or property interest” to which she had a “legitimate claim of

entitlement,” and that “the procedures attendant upon that

deprivation were constitutionally [in]sufficient.” Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989). A “cognizable

liberty or property interest,” Hettinga v. United States, 677

F.3d 471, 480 (D.C. Cir. 2012) (per curiam), is essential

because “[p]rocess is not an end in itself. Its constitutional

purpose is to protect a substantive interest to which the

individual has a legitimate claim of entitlement,” Olim v.

Wakinekona, 461 U.S. 238, 250 (1983).

Roberts claims a violation of procedural due process but

has trouble identifying the substantive interest of which she

has been deprived. She says she has a “liberty and property

interest in a fair evaluation process,” but a “fair evaluation

process” is still a process, not a substantive interest in liberty

or property. Roberts says she has a property interest in her

“employment” and a liberty interest in her “freedom to

practice her chosen profession,” but these are not implicated

because Roberts remains employed by the Navy. Roberts

says she has a property interest in the “additional active duty

pay and future retirement pay that she would have received

had she been promoted properly,” but this additional pay is

conditional upon promotion, and “there exists no property or

liberty interest in a military promotion per se,” Blevins v. Orr,

721 F.2d 1419, 1422 (D.C. Cir. 1983). Roberts says she has a

“protected interest,” per ONI Instruction 1610.2, in a

promotion recommendation matching her performance

average, but as we have seen already, the Instruction creates

no such entitlement.

17

Finally, Roberts claims she was entitled to performance

counseling, which she says she did not receive. See BUREAU

INSTRUCTION 1610.10 at C-1 (“Members will be counseled at

the mid-term point of the evaluation period and at the time of

receiving the fitness or evaluation report”)]. The Supreme

Court, however, has suggested an entitlement must have

“some ascertainable monetary value” in order to “constitute a

‘property’ interest for purposes of the Due Process Clause,”

Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766

(2005) (internal quotation marks omitted), and Roberts has

not shown a counseling session between an officer and her

superior has any ascertainable monetary value. In any event,

there is no indication Roberts ever asked for and was refused

performance counseling. Even were we to assume Roberts

asked for and was denied counseling, the deprivation would

be harmless because the purpose of counseling is to “motivate

performance improvement,” BUREAU INSTRUCTION 1610.10 at

C-2, and Roberts’s performance, by her own account, did not

decline.

C. Equal Protection Claim

Roberts also recasts one of her gender discrimination

arguments as an argument she was denied equal protection of

the laws. Specifically, she claims the decision of Captain

Reiske to give a higher recommendation to a “fellow” male

officer, and the refusal of the Board to correct that purported

error, violated the equal protection component of the Due

Process Clause of the Fifth Amendment. We have already

considered the substance of this claim in its manifestation

under the APA; as we explained there, Roberts has presented

insufficient evidence that Reiske acted with discriminatory

intent. Roberts’s equal protection claim fails for the same

reason.

18

III. Conclusion

We hold the Board’s denial of Roberts’s petition to

correct her military records was neither arbitrary nor

capricious and that her constitutional challenges are without

merit. Therefore, the judgment of the district court is

Affirmed.