Antonellis v. United States

United States Court of Appeals

for the Federal Circuit

______________________

JAMES ANTONELLIS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

______________________

2012-5140

______________________

Appeal from the United States Court of Federal

Claims in No. 11-CV-666, Judge Edward J. Damich.

______________________

Decided: July 18, 2013

______________________

JEFFREY A. VOGELMAN, Thomas, Ballenger, Vogelman

& Turner, P.C., of Alexandria, Virginia, argued for plain-

tiff-appellant.

LAUREN S. MOORE, Attorney, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, of Washington, DC, argued for defendant-

appellee. With her on the brief were STUART F. DELERY,

Principal Deputy Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and DONALD E. KINNER, Assistant

Director.

2 JAMES ANTONELLIS v. US

______________________

Before DYK, BRYSON, and REYNA, Circuit Judges.

DYK, Circuit Judge.

James Antonellis, an officer in the United States Na-

vy Reserve, appeals from a decision of the United States

Court of Federal Claims (“Claims Court”) dismissing his

back pay claim for failure to state a claim upon which

relief can be granted. See Antonellis v. United States, 106

Fed. Cl. 112 (2012). Antonellis alleged that he was enti-

tled to back pay under the Military Pay Act, 37 U.S.C.

§ 206(a), because the Navy acted improperly in failing to

assign him to a pay billet. The Claims Court dismissed

Antonellis’ claim as nonjusticiable, reasoning that there

were no standards by which it could review the Navy’s

assignment decisions. We affirm.

BACKGROUND

Antonellis has been a member of the Navy Reserve

since 1986. There is no dispute that he “has had a re-

spectable and upstanding career with the Navy.” Antonel-

lis, 106 Fed. Cl. at 113. Antonellis is a member of the

Ready Reserves, which includes the Selected Reserve and

the Individual Ready Reserve. Id. The Selected Reserve

is a paid unit; the Individual Ready Reserve is unpaid.

Id. The Individual Ready Reserve includes Volunteer

Training Units, in which members perform their reserve

duties without pay. See Bureau of Naval Personnel

Instruction 1001.39F, Ch. 3, § 301 (Sept. 17, 2007).

Antonellis appears to contend that there is no relevant

difference in the duties performed by paid and unpaid

reserve members. See Compl. ¶ 7, Antonellis v. United

States, 106 Fed. Cl. 112 (2012) (No. 11-cv-666), ECF No. 1

(“Compl.”); Oral Arg. at 35:12–35:32, Antonellis v. United

States, No. 2012-5140 (Fed. Cir. argued May 7, 2013)

(“Oral Arg.”).

JAMES ANTONELLIS v. US 3

The National Command and Senior Officer Non-

Command Billet Screening and Assignment Board (the

“APPLY Board”) possesses delegated authority to appoint

officers to Selected Reserve billets. Antonellis, 106 Fed.

Cl. at 113–14. It assigns officers to billets pursuant to a

policy guidance letter issued by the Commander of the

Navy Reserve Forces Command (“Commander”). Id. The

Commander’s guidance letter directs the APPLY Board to

convene panels to evaluate billet candidates based on

specified criteria and to “select the best qualified Officer”

for each billet. J.A. 30; Antonellis, 106 Fed. Cl. at 114.

The Commander’s guidance letter also specifies the

selection process. The APPLY Board member responsible

for each application “prepare[s] and deliver[s] a briefing”

regarding the application and recommends a numerical

“confidence factor” to be “voted on by each [APPLY] Board

member.” J.A. 29–30. Confidence factors range from 0 to

100 percent, with a score of 0 percent indicating that the

applicant is “[n]ot competitive with other Officers” and a

score of 100 percent indicating that the applicant is an

“[o]utstanding Officer” who “should be screened for as-

signment.” J.A. 30.

The Commander’s guidance letter also specifies the

criteria to be used in evaluating each applicant. It lists

“[p]roven and sustained superior performance in com-

mand or other leadership positions” and “successful

performance and leadership in combat conditions” as

important factors and states that the APPLY Board “shall

give favorable consideration to those Officers who have

displayed superior performance while serving in Individ-

ual Augmentee (IA) assignments in direct support of the

Global War on Terrorism.” J.A. 32–33. The letter further

indicates that the APPLY Board “shall give favorable

consideration to those Officers with[] relevant graduate

education, experience in specialized areas, and profes-

sional military education.” J.A. 33. The letter does not

4 JAMES ANTONELLIS v. US

specify, however, the weight to be given to each criterion

in assigning the numerical confidence factor.

The confidence factor provides the basis upon which

applicants are then ranked on a “precedence list.” J.A. 30.

“The precedence list . . . establish[es] the sequence in

which [applicants are] considered for assignments.” Id.

The Board then conducts deliberations regarding each

assignment. The Commander’s guidance letter states

that the APPLY Board’s

goal [is] to select the best qualified Officer to a bil-

let that the majority of the Board members con-

sider the best match for the preference and

qualifications of the Officer, the mission of the

unit, and the requirements of the Supported

command and billet.

Id.

From 2009 through 2011, Antonellis submitted sixty-

nine applications for Selected Reserve billets to the

APPLY Board, but he was not assigned to any Selected

Reserve billet. Antonellis, 106 Fed. Cl. at 113. During

that period, Antonellis was instead assigned to a Volun-

teer Training Unit in the Individual Ready Reserve and

he performed his reserve duties without pay. Id.

On October 12, 2011, Antonellis filed suit against the

United States in the Claims Court. He attached the

Commander’s guidance letter to his complaint and assert-

ed that, based on his outstanding service record and the

standards described in the Commander’s guidance letter,

he “has been clearly entitled to a pay billet during the

period of time he has . . . been turned down for such.”

Compl. ¶ 8. He further alleged that the APPLY Board’s

decision not to assign him to a Selected Reserve pay billet

was “arbitrary, capricious, [and] unsupported by substan-

tial evidence.” Id. He sought over $64,700 in back pay.

Antonellis, 106 Fed. Cl. at 114. The Claims Court found

JAMES ANTONELLIS v. US 5

Antonellis’ claim nonjusticiable. Id. at 116. It assumed,

without deciding, that the Commander’s guidance letter

was legally binding, but it found that the letter merely

“calls for the Board to make a subjective determination of

which officers are the ‘best’ qualified and the ‘best match’

for each billet,” and thus failed to provide any justiciable

standards for the court to apply. Id. at 116 & n.2. The

Claims Court therefore dismissed Antonellis’ complaint

for failure to state a claim upon which relief can be grant-

ed. Id. at 116.

Antonellis timely appealed. We have jurisdiction un-

der 28 U.S.C. § 1295(a)(3). We review de novo the Claims

Court’s dismissal for failure to state a claim upon which

relief can be granted. Cambridge v. United States, 558

F.3d 1331, 1335 (Fed. Cir. 2009).

DISCUSSION

I

When applicable, the Tucker Act confers jurisdiction

on the Claims Court and waives the United States’ sover-

eign immunity. See Greenlee Cnty., Ariz. v. United States,

487 F.3d 871, 875 (Fed. Cir. 2007). However, “[t]he

Tucker Act itself does not create a substantive cause of

action; in order to come within the jurisdictional reach

and the waiver of the Tucker Act, a plaintiff must identify

a separate source of substantive law that creates the right

to money damages.” Fisher v. United States, 402 F.3d

1167, 1172 (Fed. Cir. 2005) (en banc in relevant part).

Here, Antonellis relies on the Military Pay Act as the

pertinent money-mandating statute. Although the gov-

ernment appears to have challenged the Claims Court’s

Tucker Act jurisdiction below, see Antonellis, 106 Fed. Cl.

at 114, it does not press that argument on appeal. We in

any event must determine that we have jurisdiction. We

have long recognized that the Military Pay Act “provides

for suit in [the Claims Court] when the military, in viola-

tion of the Constitution, a statute, or a regulation, has

6 JAMES ANTONELLIS v. US

denied military pay.” Dysart v. United States, 369 F.3d

1303, 1315 (Fed. Cir. 2004); see also Sanders v. United

States, 594 F.2d 804, 810–11 (Ct. Cl. 1979) (en banc). The

Claims Court therefore had jurisdiction.

II

The government urges that we should affirm the

Claims Court. It argues that even if Antonellis could

establish a violation of the instructions set forth in the

Commander’s guidance letter (and that the letter was

legally binding), the Claims Court cannot award him back

pay. Alternatively, the government argues that the letter

does not set forth judicially cognizable criteria. In order

to understand the context of this controversy, some de-

scription of prior authority is useful.

Unfortunately, our decisions and those of our prede-

cessor court, the United States Court of Claims, do not

always present a clear picture of the remedies available to

a service member challenging a decision concerning

promotion, separation, or reassignment. Nonetheless,

several principles can be distilled from those cases.

First, civilian courts are reluctant to second-guess de-

cisions of the military authorities as to promotion, separa-

tion, or reassignment. We have emphasized that “the

military is entitled to substantial deference in the govern-

ance of its affairs.” Dodson v. United States, 988 F.2d

1199, 1204 (Fed. Cir. 1993); see also Orloff v. Willoughby,

345 U.S. 83, 93 (1953) (“[J]udges are not given the task of

running the Army.”). We have also noted that there are

“thousands of . . . routine personnel decisions regularly

made by the services which are variously held nonjustici-

able or beyond the competence or the jurisdiction of courts

to wrestle with.” Voge v. United States, 844 F.2d 776, 780

(Fed. Cir. 1988). In particular, we have emphasized that

“[a] court lacks the special expertise needed to review

reserve officers’ records and rank them on the basis of

JAMES ANTONELLIS v. US 7

relative merit.” Sargisson v. United States, 913 F.2d 918,

922 (Fed. Cir. 1990).

Second, if a statute, regulation, or instruction speci-

fies the particular procedure to be followed in personnel

actions, and the plaintiff alleges that the required proce-

dure was not followed, a judicial remedy may be available.

When the military promulgates procedural regulations

and instructions and makes them the basis for a person-

nel action, that action is “subject to judicial review for

compliance with those regulations and instructions.”

Sargisson, 913 F.2d at 921. When a party asserts that

the military violated a specific procedure mandated by

statute or regulation, “the test[s] or standards against

which this court measures the military’s conduct are

inherent: they are the applicable statutes and regula-

tions.” Adkins v. United States, 68 F.3d 1317, 1323 (Fed.

Cir. 1995) (citing Murphy v. United States, 993 F.2d 871,

873 (Fed. Cir. 1993)). For example, in Adkins, we recog-

nized that “although the merits of a decision committed

wholly to the discretion of the military are not subject to

judicial review, a challenge to the particular procedure

followed in rendering a military decision may present a

justiciable controversy.” Id. at 1323. There, the plaintiff

asserted that the Secretary of the Army had, inter alia,

improperly considered evidence outside the administra-

tive record in rejecting the Army Board for Correction of

Military Records’ recommendation to remove certain

negative information (which had allegedly led to Adkins’

involuntary retirement) from Adkins’ personnel file. Id.

at 1319–20, 1324. We held that this allegation was justi-

ciable because it involved a procedural requirement that

the Secretary “‘base his decision on the record as the

board presents it to him.’” Id. at 1325–26 (quoting Sel-

man v. United States, 723 F.2d 877, 880 (Fed. Cir. 1983)).

Some cases have given a broad scope to judicial re-

view of such procedural matters. In Sanders, the Court of

Claims, sitting en banc, reversed a non-promotion deci-

8 JAMES ANTONELLIS v. US

sion of the Air Force because the Air Force did not comply

with a statutory requirement “to consider him on the

basis of a record which portrayed his service career on ‘a

fair and equitable basis.’” See 594 F.2d at 806–08, 814

(quoting 10 U.S.C. §§ 3442(c), 8442(c) (1976) (repealed

1980)). Similarly, in Skinner v. United States, the court

considered a claim that that the plaintiff’s non-selection

for a promotion had been based on ratings which had been

directed by superior officers and were therefore tainted by

“improper command influence.” 594 F.2d 824, 828 (Ct. Cl.

1979).

Third, contrary to the government’s argument, a back

pay remedy under the Military Pay Act is available under

some circumstances, based on a finding of procedural

violations.

To be sure, back pay is not always available. For ex-

ample, in the promotions context we have noted that “the

Military Pay Act ordinarily does not give rise to a right to

the pay of the higher rank for which the plaintiff was not

selected.” Smith v. Sec’y of the Army, 384 F.3d 1288, 1294

(Fed. Cir. 2004). This is so because, generally, “a service

member is entitled only to the salary of the rank to which

he is appointed and in which he serve[d].” Id. However,

we have also recognized circumstances in which back pay

is available. One such exception arises when the plaintiff

“has satisfied all the legal requirements for promotion,

but the military has refused to recognize his status.” Id.

(citing Skinner, 594 F.2d at 830). Another exception

arises when a decision not to select a plaintiff for promo-

tion leads to his compulsory discharge. See id. at 1295.

In such circumstances, a successful plaintiff may recover

back pay because the Military Pay Act “‘confers on an

officer the right to pay of the rank he was appointed to up

until he is properly separated from the service.’” Id.

(quoting Sanders, 594 F.2d at 810); see also Adkins, 68

F.3d at 1327. As discussed below, still another exception

exists where the back pay claim is based on action by a

JAMES ANTONELLIS v. US 9

Board for the Correction of Military Records, see 10 U.S.C.

§ 1552, at least where a special selection board has been

convened pursuant to 10 U.S.C. § 628. See generally

Porter v. United States, 163 F.3d 1304 (Fed. Cir. 1998).

While we need not articulate precisely when back pay is

or is not available here, our cases make clear that a

personnel decision based on procedural error can lead to

an award of back pay in some instances.

The government attempts to derive a contrary rule

from Palmer v. United States, 168 F.3d 1310 (Fed. Cir.

1999) and our unpublished disposition in King v. United

States, 53 F. App’x 930 (Fed. Cir. 2002) (nonprecedential).

According to the government, in both Palmer and King we

held that back pay is not an available remedy.

We find no such rule in those cases. Palmer simply

held that a service member could not recover back pay for

duties not performed, 168 F.3d at 1312–14, while in King,

the Claims Court decision (affirmed by this court) held

that the governing policy handbook was merely “aspira-

tional” and did not carry the force of law, and that Air

Force Regulation 36-20 “furnishes no judicially enforcea-

ble standards.” King v. United States, 50 Fed. Cl. 701,

710 (2001).

Fourth, a complaint concerning procedural violations

must typically be brought first before a Board for the

Correction of Military Records. See 10 U.S.C. § 1552.

Although there is generally no requirement that a plain-

tiff exhaust remedies with the applicable Corrections

Board before filing suit in the Claims Court, Heisig v.

United States, 719 F.2d 1153, 1155 (Fed. Cir. 1983), these

cases normally still proceed through the Corrections

Boards because “[t]ypically, if suit is filed just in the

[Claims Court], that court will require resort to a Correc-

tions Board while the matter remains pending in that

court.” Richey v. United States, 322 F.3d 1317, 1323 (Fed.

Cir. 2003). In such cases, if the Corrections Board refuses

10 JAMES ANTONELLIS v. US

relief, the service member can seek review in Claims

Court pursuant to the Military Pay Act, which is the

money-mandating statute that provides the Claims Court

with Tucker Act jurisdiction. See, e.g., Adkins, 68 F.3d at

1318, 1321. With respect to promotions disputes, Con-

gress in 1980 enacted the Defense Officer Personnel

Management Act (“DOPMA”), see Pub. L. No. 96-513, 94

Stat. 2835 (1980). 1 DOPMA provides that the Corrections

Boards shall create “special selection boards” to reconsid-

er individuals for a promotion in such cases, see 10 U.S.C.

§ 628; see also Richey, 322 F.3d at 1323–25; Porter, 163

F.3d at 1312–15. The special selection board considers

the officer’s record (with any necessary corrections) to-

gether with “a sampling of the records of those officers of

the same competitive category” and makes a determina-

tion of whether the officer should be recommended for a

promotion. 10 U.S.C. § 628(a), (b). The special selection

board then submits a report to the Secretary of the perti-

nent military department detailing its recommendation.

10 U.S.C. § 628(c)(1). If the report recommends the officer

for a promotion, and the report of the board is approved

by the President, then the officer is promoted and be-

comes entitled to the pay and allowances that he would

1 Prior to the enactment of DOPMA, if a service

member established a procedural defect in the promotions

process, his right to recover could be defeated if the gov-

ernment established harmless error. See Sanders, 594

F.2d at 814–18; Hary v. United States, 618 F.2d 704, 709–

10 (Ct. Cl. 1980). In Porter, we held that, where applica-

ble, the procedures provided by § 628 superseded that

harmless error approach. 163 F.3d at 1321–24. However,

we were also careful to emphasize that we did not over-

rule Sanders in its entirety, see id. at 1323, and our

subsequent cases suggest that harmless error remains an

appropriate inquiry in other contexts. See Christian v.

United States, 337 F.3d 1338, 1347–48 (Fed. Cir. 2003).

JAMES ANTONELLIS v. US 11

have received but for the original, defective promotion

board decision. 10 U.S.C. § 628(d); Richey, 322 F.3d at

1328. When the officer is promoted, he becomes entitled

to a back pay remedy. See Porter, 163 F.3d at 1315.

Finally, a remedy is available only if the statute, regu-

lation, or instruction provides justiciable standards. This

is because a controversy is justiciable only if there are

“tests or standards for the court to apply.” Voge, 844 F.2d

at 780; see also Baker v. Carr, 369 U.S. 186, 217 (1962)

(noting that an issue is nonjusticiable if there is “a lack of

judicially discoverable and manageable standards for

resolving it”); Coleman v. Miller, 307 U.S. 433, 452–53

(1939) (finding no “criteria for . . . a judicial determina-

tion” of what constitutes a “reasonable time” in which to

ratify an amendment to the U.S. Constitution). Thus, in

Gilligan v. Morgan, the Supreme Court held nonjusticia-

ble a challenge to the “training, weaponry[,] and orders of

the Ohio National Guard” because of “a lack of judicially

discoverable and manageable standards.” 413 U.S. 1, 5–6,

8 (1973) (quotation marks omitted). The Court further

emphasized that “it is difficult to conceive of an area of

governmental activity in which the courts have less

competence” than “decisions as to the composition, train-

ing, equipping, and control of a military force.” Id. at 10.

Thus, even where a procedural violation is alleged,

the matter is nonjusticiable unless the pertinent regula-

tions or instructions provide sufficient “tests or stand-

ards” against which the court can measure the military’s

conduct. See Sargisson, 913 F.2d at 921–22; see also

King, 50 Fed. Cl. at 710 (finding the plaintiff’s reliance on

Air Force Regulation (“AFR”) 36-20 “unavailing” because

the regulation “furnishe[d] no judicially enforceable

standards”). For example, in Sargisson, an Air Force

reserve officer alleged that the Air Force improperly

released him from active duty pursuant to AFR 36-12 ¶ 71

and an implementing Letter of Instructions issued by the

Secretary of the Air Force. 913 F.2d at 920–21. However,

12 JAMES ANTONELLIS v. US

we found that “the Secretary’s compliance with AFR 36-12

¶ 71 and the Letter of Instructions [wa]s . . . nonjusticia-

ble,” reasoning that “[n]either AFR 36-12 ¶ 71 nor the

Letter of Instructions gave any ‘tests or standards’ by

which the Claims Court could determine whether the

decision to release Sargisson from active duty was cor-

rect.” Id. at 921–22.

III

The government contends that, even if there were a

procedural defect in the Navy’s billet assignments, “[An-

tonellis] might be entitled to judicial review of whether

procedures were followed, but he still cannot receive . . .

money for a position [to which] he was not assigned.”

Oral Arg. at 18:13–18:41. As discussed above, based on

our past decisions and those of our predecessor court, we

cannot agree with the government that Antonellis’ claim

fails because monetary relief is categorically unavailable

to redress a procedural violation resulting in the failure to

assign him to a pay billet. At the same time, we agree

with the Claims Court that Antonellis failed to allege a

justiciable controversy as required by our authority.

Antonellis attempts to frame his claim as a challenge

to the APPLY Board’s compliance with required proce-

dures. Thus, he argues that the Commander’s guidance

letter includes “pages of supporting procedure” which

“specifically set forth the factors which are to be consid-

ered by [the APPLY Board,] . . . prohibit from discussion

or disclosure certain other factors[, and] . . . require the

Board members to assign applicants a numerical ranking

based on the assigned confidence factor derived from the

available enumerated criteria.” Appellant’s Br. 12–13. A

closer examination of Antonellis’ argument, however,

reveals that he is not in substance alleging a procedural

violation. In his complaint, Antonellis asserts, inter alia,

that the APPLY Board’s failure to assign him to a Select-

ed Reserve billet is “biased, unexplained,” Compl. ¶ 7,

JAMES ANTONELLIS v. US 13

“arbitrary, capricious, unsupported by substantial evi-

dence,” “a flagrant abuse of discretion, [and] in bad faith,”

id. ¶ 10. Antonellis argues in his brief that “it is reasona-

ble to infer that given [his] qualifications and exemplary

record, the that APPLY Board failed to follow the proce-

dures and criteria set forth in the [Commander’s guidance

letter].” Appellant’s Br. 13. Apart from this proposed

inference, however, Antonellis asserts no basis for con-

cluding that the Navy’s assignment process was proce-

durally defective. Indeed, at oral argument, counsel for

Antonellis conceded that he lacked an adequate basis to

even allege any specific procedural violation. Oral Arg. at

6:22–7:05. 2

Even if Antonellis’ complaint could be read as alleging

a procedural violation, as the Claims Court observed, the

Commander’s guidance letter “lists the factors the Board

should consider [in making billet assignments], but it

2 At oral argument, Antonellis’ counsel suggested

that the APPLY Board did not score and rank Antonellis

as required by the Commander’s guidance letter. Oral

Arg. at 6:02–6:16. However, he stated that he had not

included that allegation in Antonellis’ complaint because

he lacked a sufficient basis to make it:

Q: “Well where does it—I don’t see where paragraph

ten or any other thing you’ve called to our attention says

he wasn’t ranked or scored.”

A: “Because I can’t, until I can see what their evi-

dence—”

Q: “You don’t even allege it.”

A: “Well . . . perhaps I should have. It’s hard to do

that because you’re supposed to have a basis for making

an allegation.”

Id. at 6:30–6:53.

14 JAMES ANTONELLIS v. US

does not specify the weight to be given to each factor.”

Antonellis, 106 Fed. Cl. at 116. While the Commander’s

guidance letter specifies in considerable detail the proce-

dures to be followed, it ultimately directs Board members

to

select the best qualified Officer to a billet that the

majority of the Board members consider the best

match for the preference and qualifications of the

Officer, the mission of the unit, and the require-

ments of the Supported command and billet.

J.A. 30. Courts are in no position to determine the “best

qualified Officer” or the “best match” for a particular

billet. See Sargisson, 913 F.2d at 922. We therefore

affirm the Claims Court’s dismissal of Antonellis’ com-

plaint.

AFFIRMED

COSTS

No costs.