United States District Court, D. Idaho
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. ...