The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2025 Decided March 13, 2026
No. 25-5013
ERNEST F. MITCHELL, LIEUTENANT,
APPELLANT
v.
JOHN PHELAN, HONORABLE, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF THE NAVY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-03775)
Dylan T. Thayer argued the cause and filed the briefs for
appellant. With him on the briefs was David P. Sheldon.
Johnny H. Walker III, Assistant U.S. Attorney, argued the
cause for appellee. Jeanine Ferris Pirro, U.S. Attorney, was
on the brief. Jane M. Lyons and Fithawi Berhane, Assistant
U.S. Attorneys, entered appearances.
Before: PILLARD and WALKER, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.
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WALKER, Circuit Judge:
Lieutenant Ernest Mitchell left his post to move his car
without telling his Commanding Officer. He was the
Command Duty Officer of a guided-missile destroyer.
The Navy penalized Mitchell for his absence from the
ship. He sued. The district court held that the Navy’s action
was reasonable and reasonably explained.
Because we agree, we affirm.
I. Background
Lieutenant Ernest Mitchell began serving in the U.S. Navy
in 2009. In August 2019, the Secretary of the Navy placed him
on a selection list for permanent promotion to Lieutenant
Commander. The Senate confirmed his nomination shortly
after that.
Mitchell likely would have received a presidential
appointment to his new rank in August 2020 if all had gone
according to plan. It didn’t. He received a written reprimand
in September 2019 and verbal counseling in October 2019,
both regarding a failure to meet standards and to communicate
with superiors. Then, while serving aboard a guided-missile
destroyer named the USS Howard on December 11, 2019,
Mitchell again failed to meet standards and to communicate
with superiors.
On that day, the Howard was scheduled to sail from one
pier to another pier located two and a half miles away. So
before the Howard left the first pier, Mitchell left the ship,
drove his car to the second pier, and returned in a Navy duty
van. Otherwise, Mitchell’s car would have been left behind
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back at the first pier when Mitchell arrived with the ship at the
second.
Mitchell was gone for at most an hour — and possibly for
only 15 minutes. But his absence was without authorization.
He did not notify the ship’s commanding officer or anyone in
his chain of command. Nor did he transfer to a qualified
replacement his responsibilities as Command Duty Officer.
Those responsibilities included acting as his Commanding
Officer’s “direct representative on board,” remaining “readily
available to quickly and effectively respond in the event that a
casualty does occur,” and preparing the Howard to safely
depart from port the following day. JA 226.
When Navy officials learned of Mitchell’s brief absence
from the Howard, a host of disciplinary and administrative
actions ensued. Five of them are relevant here.
First, the Deputy Chief of Naval Personnel approved the
detachment of Mitchell, for cause, from his assignment on the
Howard. The cause was an “act of misconduct,” Naval
Military Personnel Manual 1611-020(3)(a), and “[s]ubstandard
performance of duty over an extended period of time,” id. at
1611-020(3)(c).
Second, a Board of Inquiry found that Mitchell had
violated Articles 92 and 133 of the Uniform Code of Military
Justice by disobeying “a lawful general order” and engaging
“in conduct unbecoming an officer and gentleman.” JA 120.
Third, following Mitchell’s Senate confirmation for
promotion to Lieutenant Commander, the promotion was
delayed, and about twenty months after the projected date for
the promotion, the Secretary of the Navy removed him from
the promotion list.
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Fourth, the Board for Correction of Naval Records
recommended a denial of Mitchell’s application (a) to remove
from Mitchell’s record certain adverse records regarding his
performance on the Howard and (b) to promote him to
Lieutenant Commander.
Fifth, the Secretary of the Navy approved the Correction
Board’s recommendation and denied Mitchell’s application.
In December 2023, Mitchell sued the Secretary of the
Navy in district court. He alleged violations of the
Administrative Procedure Act. That law requires courts to
“hold unlawful and set aside” agency actions that are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A).
The district court awarded summary judgment to the
Secretary of the Navy.
II. Standard of Review
When litigants challenge factfinding by a Board for
Correction of military records, we apply “an unusually
deferential application of the ‘arbitrary or capricious’
standard.” McKinney v. Wormuth, 5 F.4th 42, 45 (D.C. Cir.
2021) (quoting Kreis v. Secretary of Air Force, 866 F.2d 1508,
1514 (D.C. Cir. 1989)). That deference includes a “strong but
rebuttable presumption that administrators of the
military . . . discharge their duties correctly, lawfully, and in
good faith.” Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir.
1997) (cleaned up).
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We review the district court’s grant of summary judgment
de novo. McKinney v. Wormuth, 5 F.4th 42, 45 (D.C. Cir.
2021).
III. Analysis
Mitchell argues that the decision of the Board for
Correction of Naval Records was contrary to law when the
Correction Board did not recognize Mitchell’s promotion to
Lieutenant Commander by operation of law. Mitchell then
offers challenges the Board’s review of his performance. He
argues that the Board was arbitrary and capricious when it
found that Mitchell exhibited “[s]ubstandard performance of
duty over an extended period.” Id. at 1611-020(3)(c).
We disagree.
A. Appointment by Operation of Law?
Mitchell argues that he was appointed to Lieutenant
Commander by operation of law because of the time that
passed between the date when his promotion was scheduled to
take effect and the date when the Secretary removed Mitchell’s
name from the promotion list. He relies on 10 U.S.C. § 624(d).
That statute first specifies circumstances under which
appointments may be delayed, id. § 624(d)(1), and then
provides that an “officer’s appointment may not be delayed . . .
more than 18 months after the date on which such officer would
otherwise have been appointed,” 10 U.S.C. § 624(d)(5).
But § 624(d)(5) limits only the duration of a permissible
delay — it does not by itself effectuate an appointment. That’s
apparent from an adjacent provision, § 624(d)(1), which says
that a delayed candidate acquitted of misconduct “shall be
retained on the promotion list” for a promotion on an as-needed
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basis. So Mitchell’s theory makes the outcome for an
unacquitted candidate whose proceedings have been delayed
(i.e., according to Mitchell, automatic promotion) more
favorable than the outcome for an acquitted candidate (i.e.,
according to § 624(d)(1), retention on the list for a later
promotion as needed).
That theory makes little sense, and it would raise
constitutional questions. Appointment is a “voluntary act” of
the Executive. Marbury v. Madison, 5 U.S. 137, 155 (1803).
And a “congressionally mandated act is not a voluntary act.”
Mitchell v. Del Toro, No. 1:23-cv-3775, 2024 WL 4891906, at
*6 (D.D.C. Nov. 26, 2024).
Because the statute is best read not to mandate
appointment of a candidate the Executive has decided against,
Mitchell was never appointed.
B. Substandard Performance of Duty Over an Extended
Period?
The Navy Military Personnel Manual provides four
reasons for a commanding officer to request that an officer be
detached for cause — i.e., removed from the officer’s current
duty assignment. Naval Military Personnel Manual 1611-
020(3). Those reasons include “[s]ubstandard performance of
duty over an extended period of time.” Id. at 1611-020(3)(c).
Here, the Correction Board did not act arbitrarily and
capriciously when it found that Mitchell had exhibited a
“substandard performance of duty between November 2018
and January 2020.” JA 127. Though his fitness reports were
often positive, his absence from the Howard was unauthorized,
and even before then, his record was not unblemished — as
documented by the request for detachment. See, e.g., JA 214-
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15 (written reprimand in September 2019; verbal counseling in
October 2019).
The Navy Military Personnel Manual calls for an
assessment based on “the facts and circumstances of the
particular case,” including whether “specific performance
deficiencies . . . continue to exist after corrective action has
been taken.” Naval Military Personnel Manual 1611-
020(3)(c). And the Navy exercised an expertise that we lack
when it assessed the facts and circumstances of Mitchell’s
particular case. Given the judicial deference owed to military
factfinders and the persistence of Mitchell’s deficiencies after
his first reprimand, we hold that the Navy’s action was
reasonable and reasonably explained.1
* * *
We affirm the judgment of the district court.
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Mitchell also argues that the Board was arbitrary and capricious
when it found that he exhibited “gross negligence or complete
disregard of duty” pursuant to 1611-020(3)(b) of the Naval Military
Personnel Manual. Though the Deputy Chief of Naval Personnel
who approved Mitchell’s detachment did not use the phrase “gross
negligence,” see JA 204, 212-17, the Board for Correction of Naval
Records did, see JA 126-27, and Mitchell has argued, here and in the
district court, that his conduct was not “gross negligence,” see
Mitchell v. Del Toro, Case No. 1:23-cv-3775, 2024 WL 4891906, at
*8-9 (D.D.C. Nov. 26, 2024). However, on the record before us, the
Board’s finding of “[s]ubstandard performance of duty over an
extended period of time” independently supports its decision.
Indeed, during oral argument, Mitchell’s counsel agreed with this.
See Oral Arg. 11:13-11:33. We need not resolve the question of
whether the Board erred when it found that his conduct was gross
negligence.
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So ordered.