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July 21, 2000


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 retired.

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 judgment.


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 ...

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