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MILLER v. DEPARTMENT OF NAVY

August 8, 2005.

ELIZABETH A. MILLER, Plaintiff,
v.
DEPARTMENT OF THE NAVY, Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
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 claims.

  II. BACKGROUND

  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 motions.

  III. ANALYSIS

  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 ...


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