The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING
THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on the parties'
cross-motions for summary judgment. The plaintiff, Lieutenant
Commander ("LCDR") Elizabeth Miller, is an active duty officer in
the Judge Advocate General ("JAG") Corps in the United States
Navy. Pl.'s Compl. ¶ 3. The plaintiff brings this case against
her employer, Department of the Navy, challenging the Secretary
of the Navy's decision not to convene a Special Selection Board
("SSB") to reconsider a prior personnel determination to not
promote her from Lieutenant Commander to Commander. Additionally,
the plaintiff seeks an unredacted Navy Bureau of Personnel
Inspector General ("BUPER IG") investigation report, which was
generated following an investigation into personnel decision not
promoting her. Because the plaintiff has failed to demonstrate
that the Secretary of the Navy's decision not to convene a SSB
was not arbitrary and capricious, not based on substantial
evidence, not a result of material error of fact or material
administrative error and not otherwise contrary to law, the court
grants the defendant's motion for summary judgment as to
plaintiff's discrimination claim. Because the redactions made to
the BUPERS IG investigation report were consistent with the Freedom of
Information Act ("FOIA") and the Privacy Act ("PA"), the court
grants the defendant's motion for summary judgment as to this
In 2002, 2003, and again in 2004, the Department of Navy's
promotion selection board (FY-02 Board, FY-03 Board, FY-04 Board
respectively) considered the plaintiff for a promotion to the
Commander rank.*fn1 The plaintiff was not selected for a
promotion by any of those boards. Def.'s Opp'n at 2. On June 19,
2002, the plaintiff requested that the Secretary of the Navy
convene a SSB to reconsider the FY-02 Board's decision to not
promote her, alleging that the Board's decision was materially
unfair. Pl.'s Mot. at 2-3. In support of this request, the
plaintiff claimed that a particular board member (1) violated his
oath in speaking to the plaintiff about board deliberations, (2)
improperly "considered men and women differently and as if they
were not competing against each other, but rather just competing
within their own gender" and (3) disregarded the "precept's
guidance on how to consider consecutive tours in the same
geographic area." Pl.'s Mot., Ex. 1, 3-4. The Chief of Naval
Personnel ("CNP"), pursuant to advice from the Navy Personnel
Command Legal Counsel, directed the BUPER IG to conduct an
investigation into these allegations. Administrative Record
("Admin. R.") at 7-8.*fn2 The written results of the BUPER
IG investigation (titled a "Completion Report") as well as a
memorandum from the CNP outlining the investigation and providing conclusion
and recommendations, was forwarded to the Secretary of the Navy.
The BUPER IG found that the portion of LCDR Miller's allegation
"that [REDACTED] violated his oath is substantiated. The
remainder of the allegation (that the Board ignored the precept
guidance and that [the board member] had a gender bias that
influenced the outcome of the Board) is unsubstantiated."
Administrative R. at 23 (emphasis in original). The Completion
Report stated that "there is insufficient justification to
approve LCDR Miller's request for a special selection board."
Id. at 24.
From this, the CNP concluded that
[t]he fact that LCDR Miller was not selected appears
to be more a factor of her failure to perform at a
consistently outstanding level and to perform in
arduous duty assignments rather than a board with a
gender bias . . .
Based on the evidence cited during the investigation,
the BUPER? IG could not find any proof of any
material error of fact or any material administrative
error committed by the members of the FY02 Active
Duty Commander JAG Selection Board.*fn3
Id. at 10. Thus, the BUPER IG recommended that the
SECNAV 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 by
the FY02 Active Duty Commander JAG Board.
Id. at 24.
Consistent with the recommendation of the BUPER IG and the CNP,
on July 23, 2003, the Secretary of the Navy denied LCDR Miller's
request to convene a SSB. By letter dated August 11, 2003, Miller was notified that the Secretary of the
Navy denied her request. The notification stated that LCDR
Miller's "record before the selection board was considered
complete and presented a substantially accurate and fair
portrayal of [her] Naval career. [Her] record was treated fairly
and impartially in accordance with SECNAV policy and Title 10."
Id. at 1.
On April 16, 2003 and again on August 15, 2003, the plaintiff
submitted a Freedom of Information Act ("FOIA") and Privacy Act
("PA") request for a copy of the "BUPER IG Report 2002-15." Pl.'s
Mot., Ex. 5. On August 22, 2003, the Navy released a redacted
copy of the BUPER IG report to LCDR Miller with a cover letter
from the Navy Personnel Command explaining the redactions made
and the justifications for them. Pl.'s Mot., Ex. 6. The plaintiff
subsequently filed a FOIA/PA appeal with the Navy, claiming that
the Navy "appeared not to have analyzed the redactions in light
of the PA, and that the public interest in proper functioning of
the Navy's promotion system and its ability and willingness (or
lack thereof) to investigate outweighed whatever slight
compromise of others' personal privacy might have flowed from
release of the entire document." Pl.'s Mot. at 3-4 & Ex. 7. The
Office of the Judge Advocate General denied the appeal, stating
that the PA did not require release of an unredacted copy because
"[t]he Privacy Act applies only to documents maintained in a
system of records . . . the [BUPER IG] report requested is not
maintained in a Privacy Act system of records because it is not
retrieved by any individual's name or by any identifier unique to
an individual person." Pl.'s Mot., Ex. 8 at 2. Additionally, the
Office of the Judge Advocate General determined that the redacted
information was correctly withheld because it constituted "names
and other personal identifiers of those providing information to
investigative bodies," which may be withheld "on a categorical
basis." Id. at 1 (citing U.S. Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749 (1989)).
The plaintiff makes two distinct claims in the present action.
First, the plaintiff challenges the Secretary of Navy's decision
to not convene a SSB, claiming that the decision was arbitrary
and capricious, not based on substantial evidence based on the
whole record, a result of material administrative error, and
otherwise contrary to law. Compl. ¶¶ 25-26. Second, the plaintiff
challenges the Navy's partial denial of her FOIA request for the
BUPER IG report. Id. at ¶¶ 27-28. The plaintiff demands that an
SSB be convened to reconsider the FY-02 Selection Board's
decision not to promote Miller, and that the Navy provide her an
unredacted copy of the BUPER IG report. Both parties filed
motions for summary judgment. The court now addresses these
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense
and, therefore, affect the outcome of the action. Celotex,
477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. Anderson, 477 U.S. at 255.
A nonmoving party, however, must establish more than "the mere
existence of a scintilla of evidence" in support of its position.
Id. at 252. To prevail on a motion for summary judgment, the
moving party must show that the nonmoving party "fail[ed] to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex, 477 U.S. at 322. By
pointing to the absence of evidence proffered by the nonmoving
party, a moving party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its
favor. Greene, 164 F.3d at 675. If the evidence "is merely
colorable, or is not significantly ...