The opinion of the court was delivered by: Stanley S. Harris, Judge.
Before the Court are plaintiffs motion for summary judgment,
defendant's motion to dismiss or, in the alternative, for summary
judgment, the parties' respective oppositions, and defendant's
reply to plaintiffs opposition. Upon consideration of the entire
record, the Court grants defendant's motion and denies plaintiffs
motion. Although findings of fact and conclusions of law are
unnecessary on decisions of motions under Rule 12 or 56
see Fed.R.Civ.P. 52(a); Summers v. Department of Justice
140 F.3d 1077, 1079-80 (D.C. Cir. 1998), the Court
nonetheless sets forth its reasoning.
Plaintiff Jennifer Nation voluntarily retired from the United
States Navy in 1997 as a lieutenant. In 1998, she filed a
complaint against the Secretary of the Navy (the "Secretary"),
alleging that she had been improperly removed from the fiscal
year 1995 promotion list for lieutenant commander before she
Plaintiff enlisted in the United States Naval Reserve in 1975.
After she was appointed to active duty as a commissioned officer
in 1984, she served as a supply officer at various posts until
her retirement from the Navy. In 1986, she was promoted to the
rank of lieutenant junior grade, and in 1988, she was promoted to
the rank of lieutenant. Between June 1991 and June 1993,
plaintiff served as a supply officer at the Seal Team FIVE
command in Coronado, California. During
this period, between
$9,000 and $12,000 worth of supplies were lost or stolen from the
command's supply storeroom. A.R. II: 280; 344-47.*fn1 In June
1993, plaintiff was assigned to the Naval Reserve Cargo Handling
Training Battalion in Williamsburg, Virginia. In November 1993,
the United States Naval Criminal Investigation Service ("NCIS")
initiated an investigation into the missing items from the Seal
Team FIVE storeroom; plaintiff was considered a suspect.
A.R. II: 365.
Plaintiff was selected for promotion to lieutenant commander
in October 1994.*fn2 Her promotion was scheduled to take effect
in May 1995. See Def.'s Mot. To Dismiss, Ex. B; A.R. II: 355. On
April 4, 1995, the Bureau of Naval Personnel interposed an
objection to her promotion because the NCIS investigation had
concluded that there was sufficient evidence to initiate charges
against plaintiff, and to convene a more formal pretrial
investigation. A.R. II: 357. By letter dated April 6, 1995,
plaintiff was notified that the Chief of Naval Personnel "ha[d]
approved the delay of [her] 1 May 95 permanent promotion to
lieutenant commander until all related administrative or
disciplinary action [was] completed," and that her conduct might
result in the removal of her name from the promotion list. A.R.
II: 355. A subsequent pretrial investigation concluded that there
was sufficient evidence to support charges of willful dereliction
of duty and suffering military property, but insufficient
evidence to support a charge of forgery. A.R. II: 280-81.
Plaintiff accepted nonjudicial punishment for her misconduct.
On April 25, 1995, B.P. Neubeck, Commanding Officer, Naval
Reserve Cargo Handling Training Battalion, administered a
punitive letter of admonition, stating that plaintiff's actions
showed that she was derelict in the performance of her duties.
A.R. II: 66-67. Plaintiff did not appeal this letter. Thereafter,
a Board of Inquiry was convened to require her to show cause for
her retention in the Navy. On January 29, 1996, the three-member
Board of Inquiry unanimously found that plaintiff had committed
the offense of dereliction in the performance of duty, but
unanimously recommended that she be retained in the Navy. A.R.
LI: 251-52. On May 1, 1996, the Chief of Naval Personnel formally
notified plaintiff that she would be retained in the Navy.
Despite her retention in the Navy, plaintiff ultimately was
removed from the promotion list for lieutenant commander. On
January 23, 1996, the Assistant Secretary of the Navy for
Manpower and Reserve Affairs (the "Assistant Secretary") ratified
and extended the delay in plaintiff's promotion "as necessary in
the public interest" until all relevant administrative and
disciplinary proceedings were concluded. AR. II: 254. On February
13, 1996, the Chief of Naval Personnel notified plaintiff that
the Board of Inquiry's finding of misconduct might result in her
removal from the promotion list. A.R. II: 19. On July 1, 1996,
the Chief of Naval Personnel recommended that plaintiff's name be
removed from the promotion list for fiscal
year 1995; the
Assistant Secretary approved that recommendation on July 16,
1996. A.R. II: 7-8. The Secretary ratified plaintiff's removal
from the list on December 11, 1996. See Sept. 20, 1999, Notice of
Filing, Ex. 1.
Plaintiff brings her complaint under the Administrative
Procedure Act, ("APA"), 5 U.S.C. § 701 et seq., alleging that
the Navy's denial of her promotion was arbitrary and capricious
because it lacks a rational basis in the record and because the
Board of Inquiry's "vote to retain [her] vitiated the impact of
the non-judicial punishment and precluded denial of promotion."
Compl. at 3. Plaintiff also alleges that her promotion was
unlawfully delayed.*fn3 See id. at 4. The Secretary moves to
dismiss plaintiff's complaint on the grounds that her claims are
not justiciable and that her complaint fails to state a claim
upon which relief can be granted. Alternatively, the Secretary
moves for summary judgment on the ground that plaintiff's removal
from the promotion list was lawful, and not arbitrary and
capricious. Plaintiff has filed a cross-motion for summary
I. Whether Plaintiff's Claims Are Justiciable
Any discussion of the justiciability of a challenge to military
personnel decisions must begin with the Supreme Court's
oft-quoted statement that:
[J]udges are not given the task of running the
Army. The responsibility for setting up channels
through which [complaints of discrimination,
favoritism, and other objectionable conduct] can be
considered and fairly settled rests upon the
Congress and upon the President of the United States
and his subordinates. The military constitutes a
specialized community governed by a separate
discipline from that of the civilian. Orderly
government requires that the judiciary be as
scrupulous not to interfere with legitimate Army
matters as the Army must be scrupulous not to
intervene in judicial matters.
Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953). "The
Constitution vests `[t]he complex, subtle, and professional
decisions as to the composition, training, equipping, and control
of a military force' exclusively in the legislative and executive
branches." Kreis v. Secretary of the Air Force, 866 F.2d 1508,
1511 (D.C. Cir. 1989) (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)). Drawing on these principles, the Court of Appeals for
this Circuit has held that a request for a retroactive promotion
is not justiciable because it would require a court ...