NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ERIC EDGECOMB WANNAMAKER, No. 18-35267
Plaintiff-Appellant, D.C. No. 3:16-cv-00549-CWD
v. MEMORANDUM** RICHARD V. SPENCER*; UNITED STATES DEPARTMENT OF THE NAVY,
Defendants-Appellees.
Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding
Submitted May 17, 2019*** Seattle, Washington
Before: KLEINFELD and FRIEDLAND, Circuit Judges, and PAULEY,**** District Judge.
* Richard V. Spencer had been substituted for his predecessor, Raymond E. Mabus, Jr., as Secretary of the Navy under Fed. R. Civ. P. 25(d). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). **** The Honorable William H. Pauley III, United States District Judge for the Southern District of New York, sitting by designation. Eric Edgecomb Wannamaker appeals the district court’s grant of summary
judgment in favor of the Secretary of the Navy (the “Secretary”), upholding the
Secretary’s decision not to convene a special selection board to reconsider
Wannamaker’s non-promotion.1 We assume the parties’ familiarity with the facts
and procedural history of this case. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
We review the district court’s grant of summary judgment de novo, viewing
the case from the same position as the district court, and we may affirm on any
ground supported by the record. Campidoglio LLC v. Wells Fargo & Co., 870
F.3d 963, 973 (9th Cir. 2017); John v. United States, 720 F.3d 1214, 1228 (9th Cir.
2013). As relevant here, the Secretary has discretion to convene a special selection
board upon finding “material unfairness,” which includes a determination that “the
action of the promotion board that considered the person” involved “material
administrative error.” 10 U.S.C. § 628(b)(1); see also SECNAVINST 1420.1B,
¶ 24(e)(3)(c) (defining a “material error” as one “more likely than not to have
deprived the officer concerned of a fair and impartial consideration by the board”).
A court reviewing a determination by the Secretary of a military department not to
1 The district court also denied Wannamaker’s motion to supplement the administrative record. Because Wannamaker does not appear to challenge this aspect of the district court’s ruling, we do not review it here. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.”).
2 convene a special selection board may set that determination aside if the
Secretary’s determination is, inter alia, “arbitrary or capricious” or “not based on
substantial evidence.” 10 U.S.C. § 628(g)(1)(A).
Wannamaker raises two primary contentions on appeal. First, he argues that
the district court erred by applying the “unusually deferential” standard of review
articulated by the U.S. Court of Appeals for the D.C. Circuit. Second,
Wannamaker claims error based on the district court’s failure to account for his
assertions of bias by the FY15 Promotion Selection Board and the district court’s
dismissal of his circumstantial evidence as speculative. Because the record
supports affirming the district court’s judgment even under the customary arbitrary
and capricious standard, we need not decide the propriety of applying an
“unusually deferential” gloss to that standard of review under 10 U.S.C. § 628(g).
We reject Wannamaker’s claim of error based on the district court’s failure
to consider his allegations of bias by the FY15 Promotion Selection Board.
SECNAVINST 1420.1B provides that a non-selected officer asserting the same
error by more than one promotion selection board must normally have the officer’s
case considered by only one special selection board. SECNAVINST 1420.1B,
¶ 24(e)(6). That special selection board is typically approved for the first
promotion selection board affected by the error, but an officer may specify the
particular board for which relief is sought. Id. Here, Wannamaker contends that
3 improper bias permeated both the FY15 and FY16 Promotion Selection Boards.
But given Wannamaker’s designation of the FY16 Promotion Selection Board as
the one for which he sought approval of a special selection board, the district court
did not err in confining its review of the Secretary’s decision to Wannamaker’s
allegations of bias concerning that board.
We also conclude that the Secretary’s decision not to convene a special
selection board was not arbitrary and capricious and that it was supported by
substantial evidence. As we have previously explained in the context of challenges
to agency action under the Administrative Procedure Act, the arbitrary and
capricious standard is “highly deferential”—“the agency’s decision is ‘entitled to a
presumption of regularity,’ and we may not substitute our judgment for that of the
agency.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th
Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
415-16 (1971), abrogated in part on other grounds as recognized in Califano v.
Sanders, 430 U.S. 99 (1977)). This review requires only “a rational connection
between facts found and conclusions made.” Friends of Santa Clara River v. U.S.
Army Corps of Eng’rs, 887 F.3d 906, 920-91 (9th Cir. 2018) (quoting
Conservation Cong. v. Finley, 774 F.3d 611, 617 (9th Cir. 2014)). Likewise, the
Supreme Court recently reiterated that the substantial evidence standard is
deferential and means only “such relevant evidence as a reasonable mind might
4 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Here, the Secretary articulated a reasoned explanation, supported by the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ERIC EDGECOMB WANNAMAKER, No. 18-35267
Plaintiff-Appellant, D.C. No. 3:16-cv-00549-CWD
v. MEMORANDUM** RICHARD V. SPENCER*; UNITED STATES DEPARTMENT OF THE NAVY,
Defendants-Appellees.
Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding
Submitted May 17, 2019*** Seattle, Washington
Before: KLEINFELD and FRIEDLAND, Circuit Judges, and PAULEY,**** District Judge.
* Richard V. Spencer had been substituted for his predecessor, Raymond E. Mabus, Jr., as Secretary of the Navy under Fed. R. Civ. P. 25(d). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). **** The Honorable William H. Pauley III, United States District Judge for the Southern District of New York, sitting by designation. Eric Edgecomb Wannamaker appeals the district court’s grant of summary
judgment in favor of the Secretary of the Navy (the “Secretary”), upholding the
Secretary’s decision not to convene a special selection board to reconsider
Wannamaker’s non-promotion.1 We assume the parties’ familiarity with the facts
and procedural history of this case. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
We review the district court’s grant of summary judgment de novo, viewing
the case from the same position as the district court, and we may affirm on any
ground supported by the record. Campidoglio LLC v. Wells Fargo & Co., 870
F.3d 963, 973 (9th Cir. 2017); John v. United States, 720 F.3d 1214, 1228 (9th Cir.
2013). As relevant here, the Secretary has discretion to convene a special selection
board upon finding “material unfairness,” which includes a determination that “the
action of the promotion board that considered the person” involved “material
administrative error.” 10 U.S.C. § 628(b)(1); see also SECNAVINST 1420.1B,
¶ 24(e)(3)(c) (defining a “material error” as one “more likely than not to have
deprived the officer concerned of a fair and impartial consideration by the board”).
A court reviewing a determination by the Secretary of a military department not to
1 The district court also denied Wannamaker’s motion to supplement the administrative record. Because Wannamaker does not appear to challenge this aspect of the district court’s ruling, we do not review it here. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.”).
2 convene a special selection board may set that determination aside if the
Secretary’s determination is, inter alia, “arbitrary or capricious” or “not based on
substantial evidence.” 10 U.S.C. § 628(g)(1)(A).
Wannamaker raises two primary contentions on appeal. First, he argues that
the district court erred by applying the “unusually deferential” standard of review
articulated by the U.S. Court of Appeals for the D.C. Circuit. Second,
Wannamaker claims error based on the district court’s failure to account for his
assertions of bias by the FY15 Promotion Selection Board and the district court’s
dismissal of his circumstantial evidence as speculative. Because the record
supports affirming the district court’s judgment even under the customary arbitrary
and capricious standard, we need not decide the propriety of applying an
“unusually deferential” gloss to that standard of review under 10 U.S.C. § 628(g).
We reject Wannamaker’s claim of error based on the district court’s failure
to consider his allegations of bias by the FY15 Promotion Selection Board.
SECNAVINST 1420.1B provides that a non-selected officer asserting the same
error by more than one promotion selection board must normally have the officer’s
case considered by only one special selection board. SECNAVINST 1420.1B,
¶ 24(e)(6). That special selection board is typically approved for the first
promotion selection board affected by the error, but an officer may specify the
particular board for which relief is sought. Id. Here, Wannamaker contends that
3 improper bias permeated both the FY15 and FY16 Promotion Selection Boards.
But given Wannamaker’s designation of the FY16 Promotion Selection Board as
the one for which he sought approval of a special selection board, the district court
did not err in confining its review of the Secretary’s decision to Wannamaker’s
allegations of bias concerning that board.
We also conclude that the Secretary’s decision not to convene a special
selection board was not arbitrary and capricious and that it was supported by
substantial evidence. As we have previously explained in the context of challenges
to agency action under the Administrative Procedure Act, the arbitrary and
capricious standard is “highly deferential”—“the agency’s decision is ‘entitled to a
presumption of regularity,’ and we may not substitute our judgment for that of the
agency.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th
Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
415-16 (1971), abrogated in part on other grounds as recognized in Califano v.
Sanders, 430 U.S. 99 (1977)). This review requires only “a rational connection
between facts found and conclusions made.” Friends of Santa Clara River v. U.S.
Army Corps of Eng’rs, 887 F.3d 906, 920-91 (9th Cir. 2018) (quoting
Conservation Cong. v. Finley, 774 F.3d 611, 617 (9th Cir. 2014)). Likewise, the
Supreme Court recently reiterated that the substantial evidence standard is
deferential and means only “such relevant evidence as a reasonable mind might
4 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Here, the Secretary articulated a reasoned explanation, supported by the
administrative record, for determining that Wannamaker failed to demonstrate
material unfairness by a preponderance of the evidence. Specifically, the Secretary
credited the 2016 Promotion Selection Board members’ certification that they had
discharged their duties without prejudice or partiality. He found the theoretical and
unsubstantiated nature of Wannamaker’s allegations insufficient to overcome the
presumptive validity of the FY16 Promotion Selection Board’s non-selection
decision. Moreover, the Secretary distinguished Wannamaker’s assertions of bias
from the circumstantial evidence found to be sufficient in Mori v. Department of
the Navy, 917 F. Supp. 2d 60 (D.D.C. 2013). Finally, Wannamaker takes issue
with the manner in which the Secretary investigated his claims. However, we
discern no “clear error of judgment” that would render the Secretary’s failure to
exhaust every lead arbitrary and capricious, see Lands Council v. McNair, 537
F.3d 981, 993 (9th Cir. 2008) (en banc), especially in light of the vague and
speculative nature of Wannamaker’s assertions.
In sum, we are satisfied that the Secretary afforded due consideration to
Wannamaker’s claim and adequately explained his rejection of Wannamaker’s
arguments, though we express no view on the correctness of the Secretary’s
5 decision. Accord San Luis & Delta-Mendota Water Auth., 747 F.3d at 602 (citing
Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)). Accordingly, we
conclude that the district court did not err in upholding the Secretary’s decision not
to convene a special selection board.
AFFIRMED.