                           NOT FOR PUBLICATION                           FILED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.”).

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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


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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.




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