Becky Roberts v. United States , 741 F.3d 152 ( 2014 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued October 7, 2013             Decided January 24, 2014
    No. 12-5149
    BECKY ROBERTS,
    APPELLANT
    v.
    UNITED STATES OF AMERICA, ET AL.,
    APPELLEES
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:11-cv-00706)
    John B. Wells argued the cause and filed the briefs for
    appellant.
    Alexander D. Shoaibi, Assistant U.S. Attorney, argued
    the cause for appellees. With him on the brief were Ronald C.
    Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
    U.S. Attorney.
    Before: ROGERS, Circuit Judge, and WILLIAMS and
    GINSBURG, Senior Circuit Judges.
    Opinion for the Court filed by Senior Circuit Judge
    GINSBURG.
    2
    GINSBURG, Senior Circuit Judge: Becky Roberts brought
    suit in the district court challenging the refusal of the Board
    for Correction of Naval Records to amend certain of her
    fitness reports. Specifically, Roberts claimed that her raters
    violated Navy directives and discriminated against her on the
    basis of her gender, and that the Board’s failure to correct
    these errors was arbitrary and capricious, in violation of the
    Administrative Procedure Act (APA), 
    5 U.S.C. § 706
    (2)(A),
    and deprived her of due process and equal protection, both in
    violation of the Fifth Amendment to the Constitution of the
    United States. Discerning no violation of the APA or of the
    Constitution, the district court entered a summary judgment
    for the Government, which we now affirm.
    I. Background
    Like most employees of the federal government, officers
    of the United States Navy receive periodic performance
    evaluations, called “fitness reports,” from their superiors. The
    preparation of these reports was regulated at all times relevant
    to this case by Bureau of Naval Personnel (Bureau)
    Instruction 1610.10 (1995), which required that each officer’s
    performance be graded by a superior officer on a scale from 1
    (unsatisfactory) to 5 (exemplary) for each of several traits,
    such as “Tactical Performance” and “Leadership,” and to
    average the scores into an “individual trait average.” BUREAU
    INSTRUCTION 1610.10 at A-8, A-20. The instruction advised
    that: “For the majority of Navy people, most of the trait
    grades should be in the 2.0 to 4.0 range,” but it did not limit
    the award of scores. 
    Id.
     The distribution of trait scores could
    therefore vary substantially from one rater to another.
    Presumably in order to limit the effect of this variance,
    Bureau Instruction 1610.10 also required the rating officer to
    make one of five recommendations relating to the
    3
    subordinate’s potential for promotion:             “Significant
    Problems,” “Progressing,” “Promotable,” “Must Promote,” or
    “Early Promote.” 
    Id.
     at A-12. The Instruction further advised
    that the “recommendation should be consistent with the
    performance trait grades, and may also take into account the
    difficulty of the assignment and the reporting senior’s
    judgment of the member’s likely value to the Navy in the next
    higher grades.” 
    Id.
     The rater’s ability to award strong
    promotion recommendations, unlike his ability to award high
    trait scores, was strictly limited: In no event could he
    recommend more than 20% of the officers in the same rank,
    or “summary group,” for “Early Promote;” the combined
    percentage receiving recommendations of “Early Promote”
    and “Must Promote” might also be capped, depending upon
    the rank of the officers in a particular summary group. 
    Id.
    Roberts, then a Lieutenant Commander, reported to the
    Office of Naval Intelligence (ONI) in February 1996. In
    effect at that time was ONI Instruction 1610.2 (1996), which
    provided “detailed command guidance in the administration
    of [Bureau Instruction 1610.10] within the ... ONI.” ONI
    INSTRUCTION 1610.2 at 1. Instruction 1610.2 specified that
    the “promotion recommendation will be based on the
    individual trait average,” 
    id. at 4
    , and set forth a “baseline
    guide ... to determine promotion recommendations,” 
    id.
     at 5:
    (1) 3.90 or above – Early Promote
    (2) 3.50 to 3.89 – Must Promote
    (3) 3.00 to 3.49 – Promotable
    
    Id.
     “For example,” the Instruction explained, “if a member’s
    trait average is 3.89, he/she will probably not be
    recommended for ‘early promote.’” 
    Id.
     Due to the upper
    limit set forth in Bureau Instruction 1610.10, however, “if
    greater than 20 percent of a summary group falls within the
    4
    ‘early promote’ range, those members with lower trait
    averages may be recommended for ‘must promote’ instead.”
    
    Id.
    In Roberts’s first fitness report, for the period ending
    October 1996, Captain J.R. Bentz gave her a trait average of
    4.17 but classified her “Must Promote,” one notch below the
    level available under the “baseline guide” quoted above. In
    her next fitness report, for the period ending June 1997, the
    same rating officer gave Roberts a higher trait average (4.33)
    but a lower recommendation, viz., “Promotable.” In his
    written comments Captain Bentz explained the lower
    recommendation “in no way reflects a decline in her
    performance, but a change in the number of officers in the
    competitive category.” This explanation, however, was
    incorrect; the size of the summary group had not changed. In
    her third fitness report while at the ONI, for the period ending
    October 1997, Roberts received a trait average of 3.83 but
    again was deemed only “Promotable.” In her written
    comments, the rater, Captain J.E. Darrah, noted: “New
    Reporting Senior. Lower trait mark average does not reflect
    decline in performance.”
    In 1999 Roberts appealed her June and October 1997
    fitness reports to the Board for Correction of Naval Records,
    whose function it is to
    determin[e] the existence of error or injustice in the naval
    records of current and former members of the Navy and
    Marine Corps [and] make recommendations to the
    Secretary [of the Navy] or ... take corrective action on the
    Secretary’s behalf when authorized.
    
    32 C.F.R. § 723.2
    (b). Roberts claimed her June 1997 fitness
    report was erroneous because, among other reasons, Captain
    5
    Bentz gave her a lower recommendation for promotion than
    the recommendation corresponding to her trait average in ONI
    Instruction 1610.2. Roberts faulted her October 1997 fitness
    report because, rather than evaluate each officer on his or her
    merits, Captain Darrah had decided “to retain all officers in
    [the] last promotion recommendation block for the brief ...
    reporting period” July through October 1997.
    In 2000 the Board denied Roberts’s petition. With
    respect to the June 1997 report, the Board acknowledged that
    Captain Bentz’s “stated reason for marking [Roberts]
    ‘promotable,’ which was a ‘change in the number of officers
    in the competitive category,’ appeared” to be incorrect. The
    Board was not persuaded, however, that Captain Bentz
    “should have marked [Roberts] above any of the officers who
    were marked ‘must promote’” or that ONI Instruction 1610.2
    required him to do so. That Instruction, in the Board’s view,
    merely provided “guidance concerning the relationship
    between trait average and promotion recommendation; it did
    not mandate a certain promotion recommendation for a
    certain range of trait averages.” With respect to the October
    1997 report, the Board determined there was insufficient
    evidence to find Captain Darrah had resolved “to retain all
    officers in their last promotion block.” Roberts did not seek
    review of the Board’s decision.
    As a result of these two contested fitness reports, Roberts
    maintains, she was “passed over for Commander on the first
    selection board to consider her,” which occurred in 2001. She
    was nevertheless promoted to that rank a year later, and for a
    time received sterling fitness reports. In May 2005, however,
    Roberts again received a recommendation of “Promotable”
    despite a trait average of 4.67. According to Roberts, the
    rater, Captain W.F. Reiske, explained he gave her a lower
    promotion recommendation because “another officer, a male,
    6
    was being screened for a third time by the Commander Sea
    Screening Board and ... [Reiske] needed to help out ‘fellow
    officers.’” Roberts was passed over for promotion to Captain
    in 2009 and 2010.
    In 2009 Roberts again appealed her June and October
    1997 fitness reports to the Board; this time she also
    challenged her May 2005 report. With respect to the two
    1997 reports, Roberts substantially reasserted the claims made
    in her 1999 petition but she offered some new evidence in
    support of them.       First, she submitted two letters of
    recommendation from Captain Bentz, dated 2001 and 2004,
    urging Roberts’s advancement and acknowledging his
    “unfamiliarity with the long term impact of subtle influences
    of the new fitness reporting system.” In addition, she
    proffered the affidavit of a private investigator she had hired,
    recounting supportive comments from Roberts’s former
    colleagues and superiors.
    With respect to the May 2005 report, Roberts claimed
    Captain Reiske had discriminated against her on the basis of
    her gender, citing Reiske’s alleged comment that he needed to
    help out “fellow officers.” Roberts argued this was “strong
    evidence of invidious discrimination since ‘fellow’ is
    normally used in the male sense.”
    The Board denied Roberts’s petition. It explained “the
    evidence submitted was insufficient to establish ... probable
    material error or injustice,” see 
    32 C.F.R. § 723.3
    (e)(2) (“The
    Board may deny an application ... if it determines that the
    evidence of record fails to demonstrate the existence of
    probable material error or injustice”), and that “[i]n this
    connection, the Board substantially concurred with the ...
    advisory opinions” it had received from the Navy Offices of
    Legal Counsel (OLC) and of Equal Opportunity (EOO). The
    7
    OLC opined that Roberts had “offered no new and material
    evidence” to warrant reopening her earlier challenge to her
    1997 fitness reports, and there was insufficient evidence to
    show Captain Reiske “was motivated to mark the [two male]
    officers” above her “solely based upon their gender.” The
    EOO noted Reiske had “not demonstrated a pattern of gender
    discrimination.”*
    Roberts brought suit in the district court, claiming the
    Board’s refusal to correct her records deprived her of due
    process because her 1997 fitness reports did not reflect her
    entitlement under ONI Instruction 1610.2 to a promotion
    recommendation matching her trait average, and deprived her
    of equal protection because her May 2005 fitness report was
    the product of gender discrimination. See Roberts v. United
    States, 
    883 F. Supp. 2d 56
    , 63–66 (D.D.C. 2012). Roberts
    also claimed the Board’s decision was arbitrary and
    capricious, in violation of the Administrative Procedure Act
    (APA), 
    5 U.S.C. § 706
    (2)(A), because it merely “rubber
    stamped” the advisory opinions and because it was
    unsupported by substantial evidence. 
    Id.
     at 68–69.
    The district court rejected Roberts’s claims. It first held
    the Board did not deny her due process because ONI
    Instruction 1610.2 “simply does not create an entitlement to
    an ‘early promote’ recommendation for all members receiving
    trait averages above 3.90.” 
    Id. at 65
    . The court next held
    Roberts had submitted insufficient evidence to “suggest[]
    intentional discrimination on the basis of gender.” 
    Id. at 67
    .
    Finally, the court held the Board’s decision was neither
    *
    The Board also received and “substantially concurred with” two
    other advisory opinions from offices other than the OLC within the
    Navy Personnel Command.
    8
    arbitrary nor capricious because the Board was entitled to
    “rely on advisory opinions without providing its own detailed
    analysis of their correctness,” 
    id. at 70
    , and because the
    explanations in the advisory opinions and in the Board’s
    earlier decision in 2000 provided a reasoned basis for the
    Board’s 2009 decision, 
    id.
     at 69–71. The district court
    therefore entered summary judgment for the Government. 
    Id. at 71
    .
    II. Analysis
    We review the district court’s grant of summary
    judgment de novo, which is to say we “review the
    administrative action directly, according no particular
    deference to the judgment of the District Court.” Holland v.
    Nat’l Mining Ass’n, 
    309 F.3d 808
    , 814 (D.C. Cir. 2002). On
    appeal Roberts again raises her APA, due process, and equal
    protection claims.
    A. APA Claim
    The Secretary of the Navy, acting through the Board for
    Correction of Naval Records, “may correct any military
    record ... when the Secretary considers it necessary to correct
    an error or remove an injustice.” 
    10 U.S.C. § 1552
    (a)(1); see
    also 32 C.F.R. 723.2(b) (describing function of the Board).
    The person seeking to correct a record must provide
    “substantial evidence” in order to overcome the Board’s
    presumption that “public officers,” including military officers,
    “have properly discharged their official duties.” 
    32 C.F.R. § 723.3
    (e)(2). The Board may deny an application “if it
    determines that the evidence of record fails to demonstrate the
    existence of probable material error or injustice.” 
    Id.
    9
    It is the longstanding practice of this court to review a
    decision of a military corrections board under an “unusually
    deferential application of the ‘arbitrary or capricious’
    standard” of the APA. Kreis v. Sec’y of the Air Force, 
    866 F.2d 1508
    , 1514 (1989); see also Piersall v. Winter, 
    435 F.3d 319
    , 324 (2006); Cone v. Caldera, 
    223 F.3d 789
    , 793 (2000).
    Roberts urges us to reject this line of authority where, as here,
    the decision is of a “personnel” rather than “operational,
    strategic or tactical” nature; “the mere fact of military
    context,” she argues, “is insufficient to require deference.”
    The deference we recognized in Kreis turned, however, not
    upon the “military context” but upon “the broad grant of
    discretion” the Congress gave the Secretary in deciding
    whether to correct a record. 
    866 F.2d at 1514
    . “It is simply
    more difficult to say that the Secretary has acted arbitrarily if
    he is authorized to act ‘when [he] considers it necessary to
    correct an error or remove an injustice,’ than it is if he is
    required to act whenever a court determines that certain
    objective conditions are met, i.e., that there has been an error
    or injustice.” 
    Id.
     (quoting 
    10 U.S.C. § 1552
    (a)(1)). In any
    event, even were we inclined to revisit Kreis, we have no
    “authority to overturn a decision by a prior panel of this
    Court.” La. Pub. Serv. Comm’n v. FERC, 
    522 F.3d 378
    , 390
    (D.C. Cir. 2008). We therefore follow Kreis and limit our
    inquiry to whether the “Secretary’s decision making process
    was deficient, not whether his decision was correct.” 
    866 F.2d at 1511
    .
    In order to pass even this modest scrutiny, the Board
    “must give a reason that a court can measure ... against the
    ‘arbitrary or capricious’ standard of the APA.” 
    Id.
     at 1514–
    15. In its decision, the Board explained its conclusion as
    follows:
    10
    [T]he Board found that the evidence submitted was
    insufficient to establish the existence of probable material
    error or injustice.       In this connection, the Board
    substantially concurred with the comments contained in
    the advisory opinions.
    Roberts argues this explanation is inadequate because the
    Board “needed to do more than state their agreement with the
    [a]dvisory opinions.” By simply “rubber stamping” the
    advisory opinions, Roberts argues, the Board was able to
    ignore important evidence and arguments, including some she
    had filed in direct response to the advisory opinions.
    As an initial matter, we cannot fault the Board for relying
    upon the advisory opinions it received. The Board is obliged
    to provide a “reasoned explanation,” Dickson v. Sec’y of Def.,
    
    68 F.3d 1396
    , 1404 (D.C. Cir. 1995), but any agency may
    meet that obligation by referring the reader to “clearly
    relevant sources other than a formal statement of reasons,”
    Envtl. Def. Fund, Inc. v. EPA, 
    465 F.2d 528
    , 537 (D.C. Cir.
    1972). Indeed, we have looked before to the reasoning of an
    advisory opinion in upholding a decision of this very Board.
    See Mueller v. Winter, 
    485 F.3d 1191
    , 1199 (2007) (affirming
    reasonableness of the Board’s position where it had
    “substantially concurr[ed]” in the view of the Navy Personnel
    Command).*
    *
    Although the Board is free to rely upon the reasoning of an
    advisory opinion, it must still provide sufficient guidance that its
    “path may reasonably be discerned.” Bowman Transp., Inc. v.
    Arkansas–Best Freight Sys., Inc., 
    419 U.S. 281
    , 286 (1974); see
    also Dickson, 
    68 F.3d at
    1404–05. The phrase “substantially
    concur” makes for a dim lantern. In a future case, the Board’s
    “substantial concurrence” with internally inconsistent or conflicting
    advisory opinions may make it difficult for the court to determine
    11
    The advisory opinion of the Navy OLC supplies the bulk
    of the relevant analysis. The OLC first noted that the Board
    had previously denied Roberts’s 1999 petition to correct her
    June and October 1997 fitness reports. Because Roberts
    “offered no new and material evidence that was not
    previously considered or reasonably available at the time of
    the prior application,” the OLC advised, the Board should
    deny Roberts’s petition with respect to the 1997 fitness
    reports “as matters previously considered and finally
    adjudicat[ed] by the Board.”
    Roberts rightly points out that she did in fact offer new
    evidence with respect to the June 1997 fitness report, viz., the
    letters of recommendation from Captain Bentz and the
    affidavit of her private investigator, Kenneth Lord, recounting
    his interview with Bentz. Although the OLC opinion did not
    explicitly address this evidence, it implicitly – and correctly –
    deemed it immaterial. In June 1997 Bentz recommended 7 of
    the 13 members of Roberts’s summary group for “Early
    Promote” or “Must Promote,” thereby hitting the 50% upper
    limit for those combined categories.               See BUREAU
    INSTRUCTION 1610.10 at A-12 (upper limit based upon the
    rank of the officers — here, Lieutenant Commander — in the
    summary group). In order to raise Roberts’s recommendation
    above “Promotable,” therefore, Bentz would have had to
    reduce the recommendation of an officer rated either “Must
    Promote” or “Early Promote.” Because Bentz did not
    repudiate any of his ratings in his letters of recommendation
    or in his putative hearsay statement to Mr. Lord, new
    evidence was immaterial.
    the Board’s reasoning. On the present record, however, the Board’s
    route is adequately lit.
    12
    Although the Board had already addressed the issue in its
    decision of 2000, the OLC opinion went on to consider
    Roberts’s argument that ONI Instruction 1610.2 entitled her
    to a higher promotion recommendation in June and October
    1997. The OLC explained, consistent with the Board’s
    reasoning in 2000, the Instruction “indicates that the overall
    trait average should be used as a baseline guide and [is]
    therefore not required to be determinative and binding.” The
    OLC added, correctly we think, that the trait average could
    not be determinative of the promotion recommendation
    because the promotion recommendation, unlike the trait
    average, is “constrained by the upper limits” in Bureau
    Instruction 1610.10.
    Roberts objects that ONI Instruction 1610.2 states “[t]he
    promotion recommendation will be based on the individual
    trait average,” ONI INSTRUCTION 1610.2 at 4; the word “will,”
    she argues, means a rater must use only the trait average to set
    the promotion recommendation as provided in the baseline
    guide. Nowhere, however, does the Instruction say the
    promotion recommendation must be based exclusively upon
    the trait average; to the contrary, it explains the
    recommendation “should also take into account the difficulty
    of the assignment and the reporting senior’s judgment of the
    member’s likely value to the Navy in the next higher grades.”
    Id. at 5. A rater may depart from the baseline guide for either
    of these reasons and indeed must depart from the baseline
    guide if more than the allowed percentage of officers in the
    summary group would otherwise get one of the two highest
    recommendations. Under this scheme the baseline guide is
    just that — a guide. It does not entitle an officer to a
    particular recommendation on the basis of a particular trait
    average.
    13
    The OLC then turned to Roberts’s contention that
    Captain Darrah froze all officers at their previous
    recommendation levels for the October 1997 fitness report.
    The OLC advised, consistent with the Board’s decision in
    2000, that Roberts had failed to present any corroborating
    evidence and therefore did not meet her burden to “rebut[] the
    presumption that [Darrah] follow[ed] Navy directives in
    submitting the fitness report.” The OLC’s factual premise is
    undoubtedly correct: Even on appeal, Roberts points to no
    evidence in the record to support her contention aside from
    her own affidavit alleging “the new reporting senior [Darrah]
    stated that she wished to maintain all officers in the same
    category during the abbreviated reporting period.” In effect
    the OLC advised that an applicant’s unsupported allegation of
    misconduct is insufficient to rebut the presumption of
    regularity. We cannot say it was unreasonable of the Board to
    adopt this position.
    Finally, the OLC turned to Roberts’s argument that her
    May 2005 fitness report was the product of gender
    discrimination. The OLC noted Roberts had provided “no
    corroborating evidence to substantiate her allegation” that
    Captain Reiske said he was lowering her recommendation to
    “Promotable” in order to help out “fellow officers.”
    Assuming Reiske did make that comment, however, the OLC
    advised:
    The term ‘fellow officer’ in military parlance is gender
    neutral and refers to both female and male officers.
    Although the other two officers may in fact be male
    officers, the statement alone does not show by substantial
    evidence that the reporting senior was motivated to mark
    the officers as [Early Promote] and [Must Promote]
    solely based upon their gender.
    14
    We see no error in the OLC’s analysis. The OLC
    correctly looked to whether the evidence showed Captain
    Reiske was motivated by discrimination on the basis of
    gender. Cf. Vill. of Arlington Heights v. Metro. Hous. Dev.
    Corp., 
    429 U.S. 252
    , 265 (1977) (absent an overtly
    discriminatory      classification,   “[p]roof      of     racially
    discriminatory intent or purpose is required to show a
    violation of the Equal Protection Clause”). Although the
    word “fellow” may (or may not) mean “a man or boy” when
    used as a noun, depending upon the context, see, e.g., Exec.
    Order No. 11,183 § 2(c), 3 C.F.R. 256, 257 (1964–65)
    (“White House Fellows shall be ... selected by the President
    without discrimination on the basis of sex”), when used as an
    adjective it simply means “in the same condition,”
    WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY 673 (2d
    ed. 1983). Ordinary usage thus supports the OLC’s assertion
    that the term “fellow officer” is not at all indicative of bias on
    the basis of gender.
    The Board also received, and again substantially
    concurred in, an advisory opinion from the Navy EOO
    concluding Reiske “had not demonstrated a pattern of gender
    discrimination.” Roberts argues this reference to a “pattern”
    invokes “the wrong standard for review of gender
    discrimination,” but she misreads the advisory opinion. The
    EOO did not suggest Roberts was required to show a pattern
    of gender discrimination by Captain Reiske; rather, it
    explained the lack of any pattern favoring men over women in
    his prior recommendations “demonstrated [Reiske’s]
    willingness to recommend an Early Promote ... regardless of
    gender.” A pattern of discriminatory action, in other words,
    would have been probative evidence of discriminatory intent,
    but there was no such pattern.
    15
    Roberts’s final APA argument is that the Board failed to
    consider other evidence of Captain Reiske’s discriminatory
    intent, including that the “two male officers were rated above
    the two female officers;” that the two male officers, unlike
    Roberts, “had not served in a combat area;” and the
    supportive comments of her colleague, Marine Colonel
    Francis Cubillo, as recounted by her private investigator.
    None of this evidence is significant. That two male officers
    were rated above two female officers goes to disparate
    impact, which though “not irrelevant” cannot sustain
    Roberts’s assertion of gender discrimination absent some
    evidence of discriminatory intent. See Washington v. Davis,
    
    426 U.S. 229
    , 242 (1976). That Roberts had more combat
    experience than her male colleagues does not imply she
    should have been recommended above them, or that Reiske
    was motivated by gender discrimination in rating her below
    them. The reported comments of Colonel Cubillo are
    hearsay, but even if taken at face value they show simply that
    Cubillo was of the opinion “Roberts should have been rated
    the same as both” the male officers. Cubillo did not in any
    way imply Reiske recommended the male officers ahead of
    Roberts with discriminatory intent.
    In sum, we hold the Board, drawing upon the advisory
    opinions of the OLC and of the EOO, reasonably determined
    “the evidence submitted was insufficient to establish the
    existence of probable material error or injustice.” Roberts
    presented no material evidence to show her June 1997,
    October 1997, or May 2005 raters erred in giving her the
    recommendation of “Promotable;” nor was she entitled by
    ONI Instruction 1610.2 to a higher promotion
    recommendation based upon her trait average. The decision
    of the Board was neither arbitrary nor capricious nor
    unsupported by substantial evidence, in contravention of the
    APA.
    16
    B. Due Process Claim
    In order to make out a violation of due process, the
    plaintiff must show the Government deprived her of a “liberty
    or property interest” to which she had a “legitimate claim of
    entitlement,” and that “the procedures attendant upon that
    deprivation were constitutionally [in]sufficient.” Ky. Dep’t of
    Corr. v. Thompson, 
    490 U.S. 454
    , 460 (1989). A “cognizable
    liberty or property interest,” Hettinga v. United States, 
    677 F.3d 471
    , 480 (D.C. Cir. 2012) (per curiam), is essential
    because “[p]rocess is not an end in itself. Its constitutional
    purpose is to protect a substantive interest to which the
    individual has a legitimate claim of entitlement,” Olim v.
    Wakinekona, 
    461 U.S. 238
    , 250 (1983).
    Roberts claims a violation of procedural due process but
    has trouble identifying the substantive interest of which she
    has been deprived. She says she has a “liberty and property
    interest in a fair evaluation process,” but a “fair evaluation
    process” is still a process, not a substantive interest in liberty
    or property. Roberts says she has a property interest in her
    “employment” and a liberty interest in her “freedom to
    practice her chosen profession,” but these are not implicated
    because Roberts remains employed by the Navy. Roberts
    says she has a property interest in the “additional active duty
    pay and future retirement pay that she would have received
    had she been promoted properly,” but this additional pay is
    conditional upon promotion, and “there exists no property or
    liberty interest in a military promotion per se,” Blevins v. Orr,
    
    721 F.2d 1419
    , 1422 (D.C. Cir. 1983). Roberts says she has a
    “protected interest,” per ONI Instruction 1610.2, in a
    promotion recommendation matching her performance
    average, but as we have seen already, the Instruction creates
    no such entitlement.
    17
    Finally, Roberts claims she was entitled to performance
    counseling, which she says she did not receive. See BUREAU
    INSTRUCTION 1610.10 at C-1 (“Members will be counseled at
    the mid-term point of the evaluation period and at the time of
    receiving the fitness or evaluation report”)]. The Supreme
    Court, however, has suggested an entitlement must have
    “some ascertainable monetary value” in order to “constitute a
    ‘property’ interest for purposes of the Due Process Clause,”
    Town of Castle Rock, Colo. v. Gonzales, 
    545 U.S. 748
    , 766
    (2005) (internal quotation marks omitted), and Roberts has
    not shown a counseling session between an officer and her
    superior has any ascertainable monetary value. In any event,
    there is no indication Roberts ever asked for and was refused
    performance counseling. Even were we to assume Roberts
    asked for and was denied counseling, the deprivation would
    be harmless because the purpose of counseling is to “motivate
    performance improvement,” BUREAU INSTRUCTION 1610.10 at
    C-2, and Roberts’s performance, by her own account, did not
    decline.
    C. Equal Protection Claim
    Roberts also recasts one of her gender discrimination
    arguments as an argument she was denied equal protection of
    the laws. Specifically, she claims the decision of Captain
    Reiske to give a higher recommendation to a “fellow” male
    officer, and the refusal of the Board to correct that purported
    error, violated the equal protection component of the Due
    Process Clause of the Fifth Amendment. We have already
    considered the substance of this claim in its manifestation
    under the APA; as we explained there, Roberts has presented
    insufficient evidence that Reiske acted with discriminatory
    intent. Roberts’s equal protection claim fails for the same
    reason.
    18
    III. Conclusion
    We hold the Board’s denial of Roberts’s petition to
    correct her military records was neither arbitrary nor
    capricious and that her constitutional challenges are without
    merit. Therefore, the judgment of the district court is
    Affirmed.