Wannamaker v. Mabus

          MEMORANDUM DECISION AND ORDER RE: DKT. 25, 27, 33

          Honorable Candy W. Dale United States Magistrate Judge.

         INTRODUCTION

         Before the Court are the cross-motions for summary judgment filed by Eric Wannamaker and the Secretary of the United States Navy, Raymond Mabus. The motions concern the Department of the Navy's denial of Wannamaker's request to convene a Special Selection Board (SSB) to review the Navy's nonpromotion decision. (Dkt. 25, 27.) Wannamaker requested that the Secretary convene a SSB to review his unsuccessful bid for promotion to the rank of Lieutenant Commander in the Navy's Judge Advocate General's Corps (JAGC). Wannamaker asserts the Fiscal Year 16 (FY16) Promotion Selection Board was biased due to his service with the Naval Criminal Investigative Service and his career path into the JAGC.

         After the Secretary denied Wannamaker's request for a SSB, Wannamaker brought suit in this Court. The Secretary urges the Court to uphold the decision not to convene an SSB. Wannamaker argues the Court should set aside the Secretary's decision. The Court conducted a hearing on the motions, including Wannamaker's later motion to supplement the record, on February 6, 2018. After hearing oral argument, reviewing the parties' memoranda, and considering relevant authorities, the Court will deny Wannamaker's request to supplement the administrative record; grant the Secretary's motion for summary judgment; and deny Wannamaker's motion for summary judgment. The Secretary's decision to deny Wannamaker's request for a SSB satisfies the “unusually deferential” standard of review applicable in cases of this type.

         FACTS^[1]

         Wannamaker enlisted and served on active duty in the United States Navy for sixteen years. He began his military career in 1992, attending the United States Naval Academy and graduating with a degree in systems engineering in May of 1996. After graduation, he served as a Naval Flight Officer, among other duties. He consistently received high praise, and was recognized in October of 2001 for “[h]is unparalleled leadership and knowledge as the weapons training officer….”

         In 2005, Wannamaker resigned his commission to attend law school. He graduated from the University of Utah School of Law in May of 2008.

         After graduation from law school, Wannamaker joined the Navy Judge Advocate General's Corps (JAGC) in 2008, and thereafter served the JAGC in various capacities. He consistently earned exceptional praise for his legal acumen and leadership. He provided legal services as a staff Judge Advocate in Amphirious Squadron Four from March 2010 to May 2011, and served in the Naval Legal Service Office Mid-Atlantic from April of 2009 to May of 2012. His last fitness report and counseling record covering the period February 2012 to May 2012, reflected that Wannamaker was an accomplished litigator, and a “superb, dependable, and versatile performer who consistently performed at a high level. Select for CSB and promote to 4 soonest!”

         From May of 2012 to January of 2016, Wannamaker served as an Assistant Staff Judge Advocate at the Naval Criminal Investigative Service (NCIS). He reached the rank of Lieutenant, consistently earning high praise. After only six months, Wannamaker was recognized as “the cream of the crop, ” “outstanding, ” and a “top performer.” During his second review period of December 2012 to January 2014, Wannamaker was described as “ris[ing] to every occasion-performing at the 0-4 Level, ” and his senior officer recommended that he be promoted “ahead of peers!”

         For the review period February 2014 through September 2014, Wannamaker was described by his senior officer as “one of the BEST JAGS I have ever worked with in my 30 years!!” The promotion recommendation was “must promote/Early promote.” For the period of September 2014 to January 2015, Wannamaker's Fitness Report and Counseling Record indicated he was the “#1 of 16 highly competitive [Lieutenants] regardless of designator or [Unit Identification Code], ” and that he was an “outstanding Judge Advocate and Officer.” The promotion recommendation was “early promote.”

         In 2014, Wannamaker was considered, but not selected, for promotion to lieutenant commander by the Fiscal Year 2015 (FY15) Active-Duty and Reserve Navy Officer Promotion Selection Board. In 2015, Wannamaker was again considered, but not selected, for promotion by the Fiscal Year 2016 (FY16) Active-Duty and Reserve Navy Officer Promotion Selection Board. The members of the FY16 board for the JAG Corps included Vice Admiral DeRenzi, JAGC, USN, the President of the selection board; and board members Captain Laurer, JAGC, USN; Captain Sullivan, JAGC, USN; Captain Galindez, JAGC, USN; and Commander Connolly, USN. Wannamaker again was not selected for promotion.

         Because of Wannamaker's failure to select for promotion, he faced mandatory involuntary separation.^[2] On October 20, 2015, Wannamaker filed for relief with the Secretary of the Navy, seeking a Special Selection Board (SSB) to reconsider his FY16 promotion. The grounds asserted were “adverse bias” of the FY16 Promotion Selection Board members based upon Wannamaker's affiliation with NCIS. Wannamaker cited the following as evidence of such bias: (1) of the last seven judge advocates assigned to NCIS, none had been promoted while on active duty; (2) circumstances suggested that senior judge advocates as a group, including members of the FY16 Promotion Selection Board, were biased against NCIS; and (3) Vice Admiral DeRenzi, the President of the FY16 Promotion Selection Board, had been denied access to certain documents while she was at NCIS, and therefore harbored a bias against NCIS JAGC officers. Wannamaker claimed also he was treated disparately due to being a prior active-duty line officer who was not accessed into the JAGC via the Law Education Program (LEP).

         The administrative record contains an action memo dated November 21, 2016, from Vice Admiral R.P. Burke, Deputy Chief of Naval Operations, addressed to the Secretary of the Navy, recommending the Secretary disapprove Wannamaker's SSB request. The action memo provides as support a detailed legal memorandum addressing Wannamaker's assertions. (AR Vol. 1 at 003-015.) The Assistant Secretary of the Navy initialed Burke's memo, indicating disapproval of the SSB request. (AR Vol. 1 at 004.) Commander M.L. Pompeo drafted a formal response dated January 11, 2017, notifying Wannamaker that the Assistant Secretary of the Navy had denied Wannamaker's request for a SSB. The formal response references Wannamaker's SSB request and SECNAVINST 1420.1B. (AR Vol. 1 at 001.) The parties agree that these documents, collectively, set forth the Secretary's decision and the bases for the same.

         Wannamaker filed the instant action on January 22, 2016, later amending his complaint on January 20, 2017, after he received the January 11, 2017 official notice from the Department of the Navy denying his SSB request. He seeks an order directing the Secretary to convene a SSB for FY16. Specifically, Wannamaker's amended complaint alleges the Secretary's decision not to convene a SSB was arbitrary and capricious, and not supported by upon substantial evidence. Wannamaker alleges the FY16 Promotion Selection Board was tainted by unfair bias based upon his affiliation with NCIS, and reflected disparities in promotion results between JAGC Officers assigned to NCIS versus JAGC officers on other assignments. He asserts also disparate treatment due to his prior service as a naval flight officer and failure to access the JAGC via the LEP.

         ANALYSIS

         1. Standard of Review

         A. Summary Judgment Standard

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The initial burden is on the movant to demonstrate the lack of a material fact dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact exists if the evidence, when viewed in the light most favorable to the non-moving party, “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party must provide more than “a scintilla of evidence” in support of its position; the quantum of evidence must be such that a jury could reasonably find for the moving party. Id. at 252. While the nonmoving party is entitled to all reasonable inferences in his favor, “there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving party “if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).

         B. Limited Scope of Review

         The Court has the authority to review a determination made by the Secretary of a military department not to convene a special selection board in the case of any person. 10 U.S.C. § 628(g)(1)(A). In doing so, the Court may set aside the Secretary's determination only if the Court finds the determination to be: (i) arbitrary or capricious; (ii) not based on substantial evidence; (iii) a result of material error of fact or material administrative error; or (iv) otherwise contrary to law. Id. Adjudication of such a challenge requires the Court to “determine only whether the Secretary's decision making process was deficient, not whether his [or her] decision was correct.” Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989); see also Guy v. United States, 221 Ct. Cl. 427, 608 F.2d 867, 874 (1979) (holding that the court should not upset an agency's non-promotion decision absent “clear, legal entitlement to it, ” because “[p]romotion under the selection board system results from the exercise of discretionary functions reserved for the Executive branch.”). If the Court sets aside the Secretary's determination not to convene a special selection board, the Court must remand the matter to the Secretary, who must provide for consideration by such a board. 10 U.S.C. § 628(g)(1)(B).

         Under the “arbitrary or capricious” standard of review, judicial review of military personnel decisions must be “unusually deferential.”^[3] Mueller v. Winter, 485 F.3d 1191, 1198 (D.C. Cir. 2007) (citing Musengo v. White, 286 F.3d 535, 538 (D.C. Cir. 2002); Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (deference is required “to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence.”)).^[4] However, while a court has no interest in undermining military personnel decision-making through aggressive judicial review, see Mueller, 485 F.3d at 1198, it equally has no intention to simply rubber-stamp the Secretary's decision without any further review, Mori v. Dep't of the Navy, 917 F.Supp.2d 60, 63 (D.C. Cir. 2013).

         The Secretary must “give a reason [for the promotion decision] that a court can measure, albeit with all due deference, against the ‘arbitrary or capricious' standard of the APA.” Kreis, 866 F.2d at 1514-1515. Although “such a deferential standard of review” enables the court to reverse “[p]erhaps only the most egregious [promotion] decisions, ” the high level of deference accorded to military promotion decisions “reconcil[es] the needs of military management with Congress's mandate for judicial review.” Id. at 1515.

         The Court must consider also whether the denial was based on “substantial evidence, ” or evidence that would have made it possible for a reasonable jury to reach the same decision. See Allentown Mack Sales and Serv., Inc. v. Nat'l Labor Relations Bd., 522 U.S. 359, 366-67 (1998) (citations omitted), cited in Mori, 917 F.Supp.2d at 63. In addition, the Court must ensure through its “material ... error” review that no “error of fact or administrative/procedural error...more likely than not...deprived the officer concerned of a fair and impartial consideration by the board.” See Miller v. Dep't of Navy, 476 F.3d 936, 939 (D.C. Cir. 2007) (quoting SECNAVINST regulations).^[5] Finally, the Court also may find a decision “contrary to law” if it “deprive[d] the officer concerned of a constitutional or statutory right.” Id.

         C. Evidence Considered

         Preliminarily, the Court must consider whether Wannamaker's extra record evidence submitted with his reply brief in the form of a declaration and attached documents, as well as the documents submitted in his reply in support of the motion to supplement, should be considered. (See Dkt. ...