The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARYJUDGMENT
This matter is before the court on the defendant's motion for summary judgment and the plaintiff's cross-motion for summary judgment. The plaintiff, a retired Lieutenant Commander in the Navy's Judge Advocate General's Corps, requested that the Secretary of the Navy ("Secretary") convene a Special Selection Board ("SSB") to review her unsuccessful bid for promotion to the rank of Commander. The plaintiff asserts that the defendant engaged in unlawful discrimination by considering female applicants against each other rather than in relation to the entire applicant pool, effectively imposing a cap on the number of women who could be promoted. After the Secretary denied the plaintiff's request for an SSB, she brought suit in this court. After this court granted summary judgment in the defendant's favor, the Circuit reversed, and this court remanded the matter. The defendant then conducted a second review of the plaintiff's request for an SSB and the Secretary again denied the request. The plaintiff subsequently brought an amended complaint in this court.
The defendant has moved for summary judgment, urging the court to uphold the Secretary's decision. The plaintiff has filed a cross-motion for summary judgment, arguing that the court should set aside the Secretary's decision. Because the Secretary's decision to deny the plaintiff's request for an SSB satisfies the "unusually deferential" standard of review applicable in cases of this type, the court grants the defendant's motion for summary judgment and denies the plaintiff's cross-motion for summary judgment.
The court recounted the factual background of this case in more detail in Miller v. Department of Navy, 383 F. Supp. 2d 5, 7-9 (D.D.C. 2005). To summarize briefly, the defendant's promotion selection board considered the plaintiff for a promotion to the rank of Commander, but ultimately chose not to select her. Pl.'s Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. ("Pl.'s Cross-Mot."), Ex. 1 ("Pl.'s Stmt. of Material Facts") ¶ 1. The plaintiff requested that the Secretary convene an SSB to reconsider the decision not to promote her, alleging that the board's decision was "materially unfair." Id. ¶¶ 14-15. In support of this request, the plaintiff contended that the promotion selection board had (1) improperly "considered men and women differently and as if they were not competing against each other, but rather just competing within their own gender,"*fn1 Admin. R. at 7,*fn2 and (2) disregarded the defendant's "guidance on how to consider consecutive tours in the same geographic area," id. at 8. The Deputy Chief of Naval Operations ("CNO") directed the Inspector General of the Navy Bureau of Personnel ("IG") to investigate the plaintiff's allegations, and the IG determined that the plaintiff's assertions were unsubstantiated. Id. at 2. As a result, the IG concluded that the plaintiff "was not selected due to her failure to perform at a consistently outstanding level and her failure to perform in arduous duty assignments" rather than as a result of improper considerations by the promotion selection board. Id. at 10. Based on the IG's report, the CNO recommended that the Secretary deny the plaintiff's request for an SSB, stating that he "could not find proof of any material error . . . committed by the members of the" promotion selection board. Id. at 11. Consistent with the IG's report and the CNO's recommendation, the Secretary denied the plaintiff's request to convene an SSB. Id.
The plaintiff brought suit in this court, alleging that the decision not to convene an SSB 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, and challenging the defendant's partial denial of her Freedom of Information Act ("FOIA") request for the IG's report, id. ¶¶ 27-28. The court granted the defendant's motion for summary judgment as to the plaintiff's claim that the decision not to convene an SSB was arbitrary and capricious. Mem. Op. (Aug. 8, 2005) at 6-10. The court also granted the defendant's motion for summary judgment as to the plaintiff's FOIA and Privacy Act claims. Id. at 10-19.
After the plaintiff appealed, the Circuit reversed this court's grant of summary judgment as to the plaintiff's claim that the denial of her SSB request was arbitrary and capricious, determining that the IG's report and the CNO's recommendation relied on the wrong ground for relief. Miller v. Dep't of Navy, 476 F.3d 936, 939 (D.C. Cir. 2007). More specifically, the Secretary was authorized to convene an SSB in cases in which "material unfairness" tainted the promotion selection board's decision. Id. The regulations clarify that "material unfairness" encompasses two situations in which an officer is entitled to an SSB. First, an SSB is appropriate if the promotion selection board deprived the officer of a constitutional or statutory right (the "'contrary to law' provision"). Sec'y of the Navy Instruction ("SECNAVINST") § 1401.1B(8)(c)(2). Second, an officer is entitled to an SSB if the promotion selection board "committed a material error of fact or material administrative error" (the "'material error' provision"). Id. § 1401.1B(8)(c)(3).
The Circuit determined that despite the fact that "the gravamen of [the plaintiff's] request for a SSB was her allegation that one of the board members acted 'contrary to law' -- that is, in violation of her constitutional right to equal protection," the IG's report and the CNO's memorandum relied on the "different and wholly inapplicable" "material error" provision in recommending that the Secretary deny her request for an SSB. Miller, 476 F.3d at 939. "This error is significant," the Circuit explained, "because the regulation's 'material error' standard contains a 'more likely than not' standard of proof, which the CNO memorandum and IG report explicitly applied in reaching their conclusions," whereas the "contrary to law" provision contains no explicit standard of proof. Id. The Circuit noted, however, that it might be permissible to apply a "more likely than not" standard to an SSB request brought under the "contrary to law" provision: "[w]hile it may be proper for the Secretary to apply a preponderance standard in evaluating claims that a promotion selection board acted 'contrary to law,' it should be as the result of a conscious (and articulated) decision by the Secretary, not as the result of relying on the wrong section of the regulation." Id.
In addition, the Circuit suggested that the Secretary "reconsider the appropriate content of the administrative record, in light of the non-disclosure provision of the newly enacted 10 U.S.C. § 613a." Id. at 940 n.2. Section 613a, which establishes that promotion selection board discussions "(1) are immune from legal process; (2) may not be admitted as evidence; and (3) may not be used for any purpose in any action, suit, or judicial or administrative proceeding without the consent of the Secretary of the military department concerned," 10 U.S.C. § 613a, bars disclosure of one component of the initial administrative record: the records of the session of the promotion selection board, known as "tank records."*fn3 Def.'s Mot. at 7.
The Circuit remanded the case to this court, Miller, 476 F.3d at 939-40, which in turn remanded it to the Secretary for reconsideration, Minute Order (Apr. 12, 2007). Following remand, a new administrative record was compiled that excluded the tank records and redacted all references thereto in accordance with § 613a. Admin. R. at 2. Based on the new administrative record, the Secretary then reconsidered the plaintiff's request for an SSB under both the "material error" provision and the "contrary to law" provision. Id. at 3-4. Because the "contrary to law" provision contained no explicit standard of proof, and to create consistency among the regulation's different subsections, the Secretary applied the same standard -- preponderance of the evidence -- that ...