Petition for Writ of Certiorari — Barnes v. United States, 128 S. Ct. 66 (2007) (No. 06-1466)

Supre

OD p aga U.S.

06146 6MAY 4 - 2007

No, OG OFFICE OF THE CLERK

[ —

IN THE

Supreme Court of the Anited States

DANNY T. BARNES,

Petitioner,

¥.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

EUGENE R. FIDELL WALTER DELLINGER

FELDESMAN TUCKER LEIFER (Counsel of Record)

FIDELL LLP MATTHEW M. SHORS

2001 L Street, N.W. NILAM A. SANGHVI

Second Floor ANNE N. CORTINA*

Washington, D.C. 20036 O’MELVENY & Myers LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

* Admitted only in New York

Attorneys for Petitioner

HECOSENRY EO THE

- P

QUESTIONS PRESENTED

The Defense Officer Personnel Management Act

(“DOPMA”), 10 U.S.C. § 611 et seg., provides that military

officers who are nominated by the President and confirmed

by the Senate “shall be promoted” to the next higher rank

unless they are notified that their promotion has been de-

layed (and therefore that their name may be removed from

the promotion list) before the projected effective date of that

promotion, unless such notification is impracticable, in

which case notice must be given as soon after the projected

date as is practicable. The questions presented are:

I. Whether the Federal Circuit erred in summanily conclud-

ing that it was impracticable to timely notify Petitioner of

the delay in his promotion simply because he was at sea

when it is undisputed that he received at least two official

e-mails while deployed and was also reachable by tele-

phone, fax, and electronic message.

II. Whether giving effect to the plain language of DOPMA

violates Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803), and the Appointments Clause, U.S. Const. art. I,

5 2, ci. 2.

ii

TABLE OF CONTENTS

Ie TRIE TY csinciesicesnsseceanssnicensiveotiommencnmmenntlh

FO rintencereviienseseanicinmmninaamamenanite

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULE INVOLVED .....:cccoscessrssescersessvoves

STA TENET ES CE BERS CA ervveccacssesvescosensnovssessscnese

A. The Statutory Scheme ...............::c0:c00+

B. Factual Background ..............csssrsessrseee

. POC EEO sis nescnsnsevscnnssssvesvens

REASONS FOR GRANTING THE PETITION .........

I. THE QUESTION PRESENTED IS IMPOR-

TANT AND RECURRING .......0....ceccccsesenees

A. The Question Is Recurring................0.

B. The Question Is Important ...................

C. Absent The Court’s Review, The

Court Of Appeals’ Decision Creates A

Nationwide Rule Governing The Ap-

pointment Of Military Officers............

Il. THE DECISION BELOW WRONGLY

SUBJECTS THOUSANDS OF MILITARY

OFFICERS TO UNWARRANTED PRO-

MOTION DENIALS AND DELAYS ..............

A. DOPMA’s Plain Language Provides

For Appointment When Notice Of A

Delay Is Not Properly Given................

B. DOPMA Does Not Violate The Ap-

OR oii esceccticsnecirentsniens

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TABLE OF CONTENTS

(continued)

Page(s)

NI. ©THE COURT CAN REACH THE STATU-

TORY AND CONSTITUTIONAL ISSUE IN

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1V

TABLE OF AUTHORITIES

Page(s)

CASES

Buckley v. Valeo,

ye Ge a ihibstticcssienitnnicenrenrvervisnviaternterenetan 22

Dysart v. United States,

DOP FOE 5208 LPOG, Cir. ZOO) ccc cosncosvenesvsvensanceess passim

Hamdan v. Rumsfeld,

Be a PN ve cssvézucidcirnsvniniacesevianecessnedsppaceiaon 26

Imperial Cas. & Indem. Co. v. Chicago

Housing Auth.,

PET ite te I GE. ADDS) ciicciiciscsccssccncnveeseccsdesonasseien 25

Law v. United States,

EF ae Be Ty the BFE ice cesicrrssnsrseccusecosiecsnsecanvens 16

Lewis v. United States,

GSE FSG 1S 7E (POG. Cir. 2006). ccsecccscncossssoernssssens passim

Marbury v. Madison,

PAR AE IED FF CLUS) irs incevecescssivnriscsncaracsaiens 2, 24

Morrison v. Olson,

Br I osiensisc vests cvevavteconsasnceshencasentustsoniadegels 22

Rolader v. United States,

We Fe CE cinkcccesisnatssvescicinesdvecduvnnent 13, 16, 18

SMS Data Prods. Group, Inc. v. United

States,

FF dee BOF CO, Cit, T9IGB) ovcccccscvcenenieccccstctorensniotens 25

United States v. Hohri,

Ne FEU TD sekcescivnccesnviexencesrvsssesdvanesnnseitananen’ 18

Weiss v. United States,

Br Sie PRN i krsiiiteinneincaincsisneasnsedieinambizareziaatetal 23

CONSTITUTIONAL PROVISIONS

ries SU, TG Te Be eohsniaiciidiaeetsinstsnieniicadondanatenss 2,4, 37,23

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

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STATUTES AND REGULATIONS

IE A MIE B ihisspeisrkenicibactigeeesivedsecassctveviegiubiiesesiddeiioubuns y

eles EE ehiincesidicosnnseusersnnenpucevennasei iniailakacicidass 2, 5, 6, 19

Ih icivesiedscisnoncconssscibeneeviaidodunoustancacionisail passim

RI TINE ais nsenaseiensvastuiewenuib coneescoeniisienraebseiciaaeiaianai 9

I is dacasinosiesisisvinpionoonieteeiearemntieionaeil 2, 6, 20

NIT SI is eis: sae hcincicdsdsnied eelinenivicbietdaiouicsanips ial 2, 6, 20

NDEI ssitinsiciiticaenscovunndervescire sans domisesioudiceninsenioeslercssuupinael 9

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II csr use pisses dabisinscionoscenieonde Masia onnaIaaal 9

I EE otis hcneesteviesxsiinsbnmervvichninieieenevenescnoliabes 5,23

a i ic asdu. cides andeydseguaninmscabiiaabioainie’ 5, 23

RETESET RSP Seen aS NR SN AL 18

og SE CERRE RIS fem cateantoirr ais Mente ee ero seat mines 13

cg. RES ERSESTESIEE TE CEES SE SPO US ECUN cea CE ee 8, 20

Defense Officer Personnel Management Act,

PG Bn PO SO SED, FO BO, ZI reese ces vesncscesensesesvevesosees 4

Defense Officer Personnel Management Act

Technical Corrections Act, Pub. L. No.

SO a saeswhivwntinionse 20

John Warner Nat’! Defense Authorization Act

for Fiscal Year 2007, Pub. L. No. 109-

SU a scien snipe 4

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

A Be ER IR ince inskianciapiiaanannibinsmionensenncciynees y Bae

OTHER AUTHORITIES

143 Cong. Rec. $11390 (daily ed. Oct. 29,

UTE aicicisilecs shales ld dadaaecbsipstiigialsdtnidlisreneinnseniocoveretevetsannans 10

143 Cong. Rec. $12214 (daily ed. Nov. 8,

EE ed deiciesoakidciaibisahisceilecaisciiaesmbisencsiinslbivvenssebised 10

152 Cong. Rec. D1088 (daily ed. Nov. 9,

EES LNA Ty pene ay Ise ee enna ee 4, 16

H.R. Rep. No. 96-1462 (1980), partially

reprinted in 1980 U.S.C.C.A.N. 6333 ...........cceceeeees 4, 23

H.R. Rep. No. 97-141 (1981), reprinted in

Se Cres IIe cas srtiiiesenectnnsacnevncenivecsieevnics 8,21, 25

i i, re ON isaac coscckccvnscievecsenvantvesensincel 4, 23

American Heritage Dictionary (4th ed. 2000) ................0. 26

Amicus Br. of Mr. Barnes, et al., in Dysart v.

United States, 2003 WL 24305578 ...........::cccceesseeeseeees 16

Lewis v. United States, Cert. Pet., No. 06-

2 BORER RES Rae ise A C0) OT a aT PEE passim

Random House Webster’s Unabridged

SPINE DIB GU. DIET eichicecicecncecscssctienscanveccascesivescanses 26

l

Danny T. Barnes respectfully petitions for a writ of cer-

tiorari to revie’ “he judgment of the United States Court of

Appeals for the : + leral Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. 1a-13a)

is reported at 473 F.3d 1356. The memorandum and order of

the Court of Federal Claims on reconsideration (Pet. App.

14a-40a) is reported at 66 Fed. Cl. 497. The original memo-

randum and order of the Court of Federal Claims (Pet. App.

41a-81a) is reported at 57 Fed. Cl. 204.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 4, 2007. Petitioner filed a timely application for an

extension of time to file this petition on March 23, 2007.

The Chief Justice granted that application, extending the

time to file this petition to May 4, 2007. This Court has ju-

risdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES, AND

RULE INVOLVED

The Appointments Clause provides that the President

shall nominate, and by and with the Advice and Con-

sent of the Senate, shall appoint . . . Officers of the

United States . . . but the Congress may by law vest

the Appointment of such inferior Officers, as they

may think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.

The Constitution also provides:

The Congress shall have the power [t]o raise and

support Armies . . . ; [t]o provide and maintain a

Navy; [t]o make rules and regulations for the Gov-

emment and Regulation of the land and naval Forces

2

. .. [and] [t]o make all laws which shall be necessary

and proper for carrying into Execution the foregoing

Powers... .”

U.S. Const. art. I, § 8.

The texts of 10 U.S.C. §§ 611, 618, 624, 629, and 741,

and the Secretary of the Navy’s regulation, SECNAVINST

1420.1A (1989), are reproduced at Pet. App. 122a-167a.

STATEMENT OF THE CASE

The Court of Appeals agreed in a prior case that the issue

presented in the petition raises “significant questions con-

cerning the appointment process for military officers.” Dy-

sart v. United States, 369 F.3d 1303, 1306 (Fed. Cir. 2004)

(reprinted at Pet. App. 82a-106a). Most significantly, this

case raises the question whether the plain language of

DOPMA — the statute governing military promotions —

violates Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),

and the Appointments Clause, U.S. Const. art. II, § 2, cl. 2.

The plain language of DOPMA provides that officers who

are nominated for promotion by the President, confirmed by

the Senate, and given projected promotion dates by their Ser-

vice Secretaries are appointed unless they are given statuto-

nly sufficient notice that their promotions are delayed and

are then removed from the promotion list within the reason-

able, statutorily-prescribed time period. The Court of Ap-

peals nonetheless adopted a tortured interpretation of this

clear statutory scheme to avoid what it perceived to be con-

stitutional problems otherwise arising from DOPMA’s plain

meaning.

The Court should grant review to restore Congress’ clear

intent in enacting DOPMA and to preserve the nights of

thousands of military officers to be promoted in accordance

with a clear statutory scheme. Because the question pre-

sented generally arises only in the Federal Circuit, the deci-

sion below effectively creates a nationwide rule. Absent re-

3

view, the decision will therefore subject qualified military

officers to unwarranted denials or delays of promotion. It

will do so contrary to the plain language of DOPMA and

Congress’ equally clear goal of creating an efficient ap-

pointment process for the maintenance of the modern mili-

tary. And it will do so based on the mistaken constitutional

concern that Marbury, rather than simply describing the na-

ture of the appointment at issue in that case, instead created

an inflexible rule governing a// appointments over two cen-

turies later.

A petition raising the same principal question presented

here is pending before the Court. See Lewis v. United States,

No. 06-1289 (hereinafter “Lewis Pet.”). Petitioner respect-

fully requests that this Court hold his petition pending its de-

cision in Lewis. If the Court grants certiorari in Lewis, the

Court should grant this petition and consider consolidating

the cases for argument.

Here, petitioner was not properly notified that his promo-

tion was going to be delayed before the effective date of that

promotion. In Lewis, the petitioner was not removed from

the promotion list until after the statutorily-prescribed time

period for such action had passed. The cases are effectively

bookends of the DOPMA promotion process. In both cases,

the Federal] Circuit held that appointments had not been ef-

fectuated under DOPMA. Taken together, these cases show

not only that this question is recurring but also that regard-

less of whether the Government’s failure to comply with

DOMPA occurs at the beginning or the end of the appoint-

ment process, the Federal Circuit’s interpretation of that stat-

ute in Dysart continues to result in unwarranted denials of

promotion. Further percolation of the question presented is

neither necessary nor warranted. The Court should grant re-

view.

4

A. The Statutory Scheme

This case concerns the meaning and constitutionality of

DOPMA, Pub. L. No. 96-513, 94 Stat. 2839 (1980), codified

at 10 U.S.C. § 611 et seg. (signed into law by President

Carter, with technical amendments signed by President

Reagan).' DOPMA was proposed by the Department of De-

fense (“DOD”’) in order to modernize the military’s officer

personnel law. See S. Rep. No. 96-375, at 75 (1980); H.R.

Rep. No. 96-1462, at 47 (1980), partially reprinted in 1980

U.S.C.C.A.N. 6333. The House Committee on Armed Ser-

vices likewise recognized that DOPMA’s predecessor statute

“was drafted at a time when lawmakers could not have fore-

seen the requirements for large, ready forces on a[] sustained

basis” and therefore did not address management issues

faced by the moder military. H.R. Rep. No. 96-1462, su-

pra, at9. DOPMA was a reaction to that problem, and, ac-

cording to the DOD, would “provide the services a more eq-

uitable, effective, and efficient system to fill officer force

structure requirements and manage the officer corps.” Jd. at

56.

DOPMA’s efficient and uniform system governing the

promotion of military officers is needed more today than it

was when DOPMA was enacted. Literally thousands of of-

ficer promotions occur every year in the services. See, e.g.,

152 Cong. Rec. D1088 (daily ed. Nov. 9, 2006). DOPMA,

which governs all such promotions, ensures that they take

place when needed to ensure the readiness of our military in

the modern era. There can be no question but that DOPMA

falls within Congress’ core powers. See U.S. Const. art. I,

§ 8 (“The Congress shall have power . . . [t]o raise and sup-

port armies . . . [t]o provide and maintain a Navy . . . [and]

' Certain of DOPMA’s provisions that are not relevant here were

amended in 2006. See John Warmer Nat’! Defense Authorization Act for

Fiscal Year 2007, Pub. L. No. 109-364, 120 Stat. 2083 (2006). Citations

herein refer to the prior version of the statute.

5

(t]o make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers.”).

DOPMA comprehensively prescribes the “appointment”

of military officers selected for promotion. It provides that

“(appointments . . . shall be made by the President, by and

with the advice and consent of the Senate” except in the case

of certain !ow-ranking officers not at issue in this case. 10

U.S.C. § 624(c) (further providing that appointments to the

rank of first lieutenant or captain in the Army, Air Force, or

Marine Corps, or to lieutenant (junior grade) or lieutenant in

the Navy “shall be made by the President alone”).’ The ap-

pointment process begins when the Secretary of the relevant

military service determines that it is necessary to convene a

selection board to recommend the selection of active-duty

officers for promotion to the “next higher permanent grade.”

Id. § 611(a). The selection board prepares a report recom-

mending officers for promotion, which is reviewed by the

Secretary of the appropriate service, who then forwards the

report to the Chairman of the Joint Chiefs of Staff (for cer-

tain officers) and to the Secretary of Defense (for all offi-

cers). Id. §§ 618(a)(1), (b)(1), & (c)(1). The Service Secre-

taries are not required to accept a report of the selection

board and may return the report to the board for further pro-

ceedings. Jd. §618(a)(2). Likewise, the Chairman may

make comments and return a report to the Secretary con-

cerned or in certain circumstances may return the report to

the selection board for further proceedings. Jd. §§ 618(b)(3),

(4).

2 DOPMA governs promotions for members of the Army, Air

Force, Navy, and Marine Corps. The implementing iegulation, see

SECNAVINST 1420.1A, tracks the statute. Similar statutory schemes

govern promotions of officers in the Coast Guard, see 14 U.S.C. § 271 et

seq., and of reserve officers in the Army, Air Force, Navy, and Marine

Corps. See 10 U.S.C. § 14001 et seq.

6

Once a report is approved by al] pertinent officials, the

Secretary of Defense transmits it to the President for ap-

proval or disapproval. Jd. § 618(c)(1). The President may

remove the name of any officer recommended for promotion

on the selection board’s report. Jd. § 629(a).

The list of officers approved for promotion by the Presi-

dent is then submitted to the Senate for its advice and con-

sent. Id. § 629(b). If the Senate does not confirm an officer,

his or her name is removed from the list. Jd. If the Senate

confirms the officer, on the other hand, he or she “shall be

promoted to the next higher grade when additional! officers in

that grade and competitive category are needed.” Jd. § 624

(a)(2) (emphasis added).

The Secretary of the relevant service thereafter sets the

officer’s actual date of “appointment,” which is also the ef-

fective date of the officer’s promotion to the next grade. Jd.

§ 741(d)(2) (“Except as otherwise provided by law, the date

of rank of an officer who holds a grade as the result of a pro-

motion is the date of his appointment to that grade.”) (em-

phasis added); see also id. § 624(b)(2). The Secretary in-

forms officers of the projected effective date of their ap-

pointment and promotion by transmitting the confirmed

promotion list to appropriate personnel. If the Secretary

takes no further action, the officer’s appointment occurs on

that date. Jd. § 741(d)(2).

The Secretary also has authority to delay the date of an

officer’s appointment. /d. §§ 624(d)(1), (d)(2). For exam-

ple, the Secretary may delay the appointment if there is

“cause to believe that the officer is mentally, physically,

morally, or professionally unqualified to perform the duties

of the grade for which he was selected for promotion.” /d.

§ 624(d)(2).? DOPMA further provides that

* DOPMA also provides that:

7

[t]he appointment of an officer may not be delayed

under this subsection unless the officer has been

given written notice of the grounds for the delay,

unless it is impracticable to give such written notice

before the effective date of the appointment, in which

case such written notice shall be given as soon as

practicable.

Id. § 624(d)(3) (emphases added).

Under the plain language of t. 2 statute, then, an officer

who is not informed of a delay before the effective date of

his appointment — or as soon thereafter as practicable if it

was impracticable to inform the officer of the delay before

the effective date — is appointed.“

Under regulations prescribed by the Secretary concerned, the

appointment of an officer under this section may be delayed if --

[] sworn charges against the officer have been received by an

officer exercising general court-martial jurisdiction over the of-

ficer and such charges have not been disposed of, [] an investi-

gation is being conducted to determine whether disciplinary ac-

tion of any kind should be brought against the officer; [] a board

of officers has been convened under chapter 60 of this title to

review the record of the officer; or [] a criminal proceeding in a

Federal or State court is pending against the officer.

10 U.S.C. § 624(d)(1).

* During any period of delay, the Secretary has the authority to de-

cide whether to retain an officer on the promotion list. 10 U.S.C. §§ 624

(d)(1), (d)(2); SECNAVINST 1420.1A 4 23(e). Under authority dele-

gated by the President, the Secretary may remove an officer’s name from

the promotion list during the statutory delay period. SECNAVINST

1420.1A ¥ 23(e); see also, e.g., Lewis v. United States, 458 F.3d 1372,

1379 (Fed. Cir. 2006) (reprinted at Pet. App. 107a-121a) (agreeing that

the President can delegate both the authority to appoint military officers

and the authority to decline to appoint officers) (collecting cases).

DOPMA also creates a maximum period of delay of eighteen months

from “the date on which the officer otherwise would have been ap-

pointed.” 10 U.S.C. § 624(d)(4). At the end of that eighteen-month pe-

8

Notably, the original version of the statute provided only

that “{t]he appointment of an officer” could not be delayed

“unless the officer ha[d] been given written notice of the de-

lay.” 94 Stat. 2858 (1980). In adding the impracticability

exception in 1981, Congress recognized that in some cases

officers who it was not practicable to reach before their pro-

motion dates might be promoted simply because they had not

been timely notified of a delay. H.R. Rep. No. 97-141, at 14

(1981), reprinted in 1981 U.S.C.C.A.N. 24, 37. The legisla-

tive history thus confirms the understanding discussed above

— that officers not informed prior to their projected promo-

tion date that their appointment is to be delayed will be ap-

pointed.

The Secretary’s decision to set an effective appointment

date and failure to follow clear statutory procedures to delay

an officer’s promotion, therefore, are the only post-

confirmation Executive Branch actions required to effectuate

the appointment of an officer to the next permanent grade.

DOPMaA contemplates that the Executive’s failure to comply

with its reasonable requirements regarding promotion delays

constitutes the exercise of executive discretion in favor of

appointment. See 10 U.S.C. § 624(a)(2) (“Except as pro-

vided in subsection (d) [the delay provision], officers on a

promotion list for a competitive category shall be promoted

to the next higher grade when additional officers in that

grade and competitive category are needed.”) (emphasis

added). The historical record confirms that the Executive

Branch fully understands this operation of the statute. Legal

memoranda from Joseph Califano, a special assistant to

President Lyndon B. Johnson, advised President Johnson to

riod, unless the officer’s name has first been removed from the promotion

list, that officer is unambiguously promoted under the statute. See id.

§ 624(a)(2). The officer is likewise formally appointed on that date. /d.

§ 624(d)(4); see also id. § 624 (b)(2); Lewis Pet. at 5-8.

9

take action on the promotion of certain officers prior to their

projected promotion dates or those officers would be “auto-

matically appointed” under DOPMA’s predecessor statute.

See JA 364-66.” Indeed, as we shall explain, the government

has more recently conceded in litigation conducted in the

Court of Federal Claims that, when DOPMA’s procedures

are not followed, appointments are effectuated as a matter of

course.°

* Citations to the “JA” refer to the Joint Appendix in the Court of

Appeals. The memoranda were obtained from the Lyndon Baines John-

son Library and Museum. See, e.g., JA 365, Dec. 16, 1965 Mem. from

Joseph Califano to Pres. Johnson (“Based on these circumstances it is

recommended that you remove these officers from the promotion list on

the ground that they are not qualified for promotion. [Redacted] will be

automatically promoted on December 20 and [redacted] December 18

unless you act before these dates.”) (redactions in original); JA 366, Feb.

10, 1966 Mem. from Joseph Califano to Pres. Johnson (“Unless you take

the recommended removal action before February 15, 1966 [redacted]

will be automatically promoted.”) (redaction in original); see also JA

364, Dec. 13, 1965 Mem. from James Cross for Joseph Califano (“Presi-

dential approval for the withdrawal of [officers’] names will be necessary

in the case of Lieutenant [redacted] before 18 December and for Captain

[redacted] before 20 December. These are the dates when the officers

complete the service required for advancement to the next higher perma-

nent grade.”) (redactions in original).

* This operation of DOPMA does not saddle the armed forces with

flawed officers. After an officer is promoted, the President and the Ser-

vice Secretaries of course retain the power to dismiss or otherwise disci-

pline those officers. See, e.g., 10 U.S.C. § 625 (providing that the Presi-

dent may vacate promotions to Brigadier General and Rear Admiral

(lower half) within eighteen months after promotion); id. § 801 et seq.

(providing for dismissal and other sanctions pursuant to the Uniform

Code of Military Justice); id. § 1161(b) (providing that the President may

drop a commissioned officer from the rolls in certain circumstances); id.

§§ 1181, 1182 (providing for boards of inquiry to determine whether an

officer should be retained on active duty).

10

B. Factual Background

The petitioner, Danny T. Barnes, enlisted in the United

States Navy in 1983. He rose through the ranks and was

promoted to Lieutenant in 1992. He was then selected on

schedule for promotion to Lieutenant Commander in the

Cryptology competitive category. The President nominated

him to that rank on October 29, 1997. 143 Cong. Rec.

$11390-91 (daily ed. Oct. 29, 1997). He was confirmed by

the Senate on November 8, 1997, id. at $12214-15 (daily ed.

Nov. 8, 1997), and given a projected promotion date of April

1, 1998. JA 403.

On February 4, 1998, however, the Naval Security Group

Command transmitted a report to the Chief of Naval Person-

nel of a non-judicial punishment proceeding (“NJP’’) against

Mr. Barnes conducted in 1997 at Naval Security Group Ac-

tivity (“NSGA”) Misawa, Japan. The Commander of the

Naval Security Group Command recommended that Mr. Ba-

mes be removed from the Lieutenant Commander promotion

list and required to show cause for retention in the naval ser-

vice.’ JA 383. Subsequently, the Deputy Chief of Naval

Operations was informed that Mr. Barnes would not be in-

cluded on the April 1, 1998 transmission listing officers who

had been promoted. JA 384. On March 17, 1998, a memo-

randum from the Chief of Naval Personnel to Mr. Barnes

stated his April 1, 1998 promotion was being delayed. The

memorandum noted the NJP and stated that the promotion

was delayed until “all related administrative or disciplinary

’ The NJP was held on November 24, 1997, and Mr. Bames was

awarded seven days’ restriction. Based on the NJP, Mr. Barnes’ Com-

manding Officer recommended that his promotion to Lieutenant Com-

mander be delayed so that he would be the last officer promoted in his

year group. Because he “ha(d] the potential to be a strong, positive asset

for the Navy,” his Commanding Officer did not recommend that his pro-

motion be withheld or that he be required to show cause for retention in

the Navy. JA 78.

11

action [was] completed.” JA 46. A certified mail receipt

indicates that this memorandum was sent to Mr. Barnes via

NSGA Misawa, where he was stationed, on March 23, 1998.

JA 385.

At that time, Mr. Barnes was deployed to the USS John

S. McCain in the Persian Gulf. On March 30, 1998, while

still at sea, he was informed by e-mail that a Board of In-

quiry would be conducted regarding his retention in the

Navy. He was not, however, informed that his promotion,

scheduled to take place the next day, had been delayed.® JA

405. On April 9, 1998, over a week after Mr. Barnes’ pro-

jected promotion date, the Executive Officer at NSGA Mi-

Sawa sent an e-mail to the Bureau of Naval Personnel (“Bu-

Pers”) to inform it that he had received the letter stating Mr.

Bames’ promotion would be delayed and a package regard-

ing the Board of Inquiry but did not want to mail Mr. Barnes

these documents because he was concerned that they would

be delayed or that Mr. Barnes would be on his way back by

the time the letters reached the McCain. JA 114.

The government has never disputed that Mr. Barnes was

reachable aboard the McCain by a variety of means other

than regular mail, including e-mail, fax, telephone, and elec-

tronic message. JA 403-05. Indeed, while still at sea, he

was informed by e-mail from NSGA Misawa on Apmil 15,

1998, two weeks after his projected April I promotion date,

that his promotion was being delayed. JA 406. Mr. Barnes

did not receive the memorandum notifying him of the delay

and the grounds for it until he returned to NSGA Misawa

from the McCain on April 21, 1998, three weeks after his

projected promotion date. JA 114. Thus, although the Navy

had known about the reasons underlying Mr. Barnes’ promo-

* Indeed, beginning on his projected promotion date of April 1, 1998,

Mr. Barnes received pay at the higher rank of Lieutenant Commander for

approximately one year but was later asked to repay the difference. JA

406.

12

tion delay since November 1997, it did not take action to de-

lay his promotion until March 1998, did not notify him in

any way of his promotion delay until two weeks after his

projected promotion date even though he was reachable at

sea before that date, and did not give him the official memo-

randum setting forth the grounds for the delay until yet an-

other week had elapsed.

Mr. Barnes submitted a response to the promotion delay

on April 25, 1998 that included supporting letters from his

superiors.” On May 27, 1998, the Board of Inquiry deter-

mined that Mr. Barnes had engaged in conduct unbecoming

an officer but recommended that he be permitted to remain

in the Navy. JA 125-26. Nevertheless, in a series of proce-

durally deficient steps, the Navy further extended his promo-

tion delay, JA 130, and ultimately removed his name from

the promotion list. JA 132. In 2001, Mr. Barnes was again

passed over for promotion and was released from active

duty. JA 145, 151. He became a member of the Naval Re-

serve, from which he resigned in 2003. JA 149-50.

C. Procedural History

1. On October 21, 1999, Mr. Barnes filed suit in the

Court of Federal Claims, alleging, inter alia, that his promo-

tion occurred as a matter of law because the delay did not

comport with statutory and regulatory procedures and that he

was therefore entitled to back pay and reinstatement in the

* For example, the Commanding Officer of the McCain wrote: “I

awarded LT Barnes a Navy Achievement Medal for his superb perform-

ance while aboard the JOHN S. MCCAIN. ... Promote LT Barnes to

LCDR now and only assign him to the most challenging billets.” JA

117-18. The ship’s Executive Officer also supported Mr. Barnes’ promo-

tion, stating: “LT Bames has been a tremendous asset to this command

and to the overall mission of this battle group as a whole. ... Based on

his superior performance at this command, | highly endorse his promo-

tion to Lieutenant Commander and future retention in the Naval service.”

JA 119.

13

Navy.’° That court granted Mr. Barnes’ motion for judgment

on the administrative record, rejecting the government’s ar-

gument that Mr. Barnes was not promoted because the Presi-

dent has ongoing discretion to remove an officer’s name

from the promotion list at any time. Pet. App. 74a-76a. The

Court found several defects in the Navy’s handling of Mr.

Barnes’ promotion to Lieutenant Commander and, with re-

spect to whether Mr. Barnes had been timely notified of the

initial delay of his promotion, observed that “[c]learly com-

munication via email was possible” while he was at sea. Pet.

App. 68a.

At the time the Court of Federal Claims reached its deci-

sion in this case, another decision of that court fully sup-

ported Mr. Barnes’ reading of DOPMA. Rolader v. United

States, 42 Fed. Cl. 782 (1999), held that an officer whose

name was never removed from the promotion list before the

last possible date of statutory delay had been “promoted”

under DOPMA — precisely the reading Mr. Bares asserted

regarding the Navy’s improper actions in his case. Indeed,

the government conceded the point in Rolader. See id. at

786 (stating that “[t]he Government concedes that if no rec-

ommendation for removing plaintiff's name from the promo-

tions list was initiated prior to [the last date of possible de-

lay], he was automatically promoted, irrespective of the sub-

sequent removal”) (emphases added).

'° The Court of Federal Claims had Tucker Act jurisdiction because

Mr. Barnes sought back pay under the Military Pay Act, 37 U.S.C. § 204.

While this case was pending before that court, Mr. Barnes applied to the

Board for Correction of Naval Records (“BCNR”) for a determination

that he had been promoted to Lieutenant Commander because the Navy

failed to follow the required procedures in delaying his promotion. The

litigation was stayed pending resolution of the BCNR proceedings. The

BCNR denied his application and also denied on reconsideration. JA 48-

49. 51-52.

14

2. While proceedings regarding the appropriate amount

and nature of relief continued in Mr. Barnes’ case, the gov-

ernment took precisely the opposite view in Dysart, persuad-

ing the Federal Circuit in that case that an officer whose

name is removed from the promotion list after the prescribed

statutory period has ended is not promoted under DOPMA

because DOPMA does not provide for appointments. Dysart

held that the President has discretion under DOPMA to re-

move an officer’s name from the list at any time. 369 F.3d at

1311, 1315-17 (deciding issue without reference to contrary

Court of Federal Claims precedent). This holding was

driven by the Federal Circuit’s belief that a decision inter-

preting DOPMA according to its plain language would raise

questions regarding the Appointments Clause and the inter-

pretation of Marbury v. Madison. See Lewis Pet. at 12-13,

23-28. The Federal Circuit concluded that interpreting

DOPMA in the manner Dysart proposed — as providing for

the promotion of a nominated, confirmed officer unless

statutory procedures for removing the officer’s from the

promotion list are complied with — would impermissibly

encroach on executive power and violate Marbury. Dysart,

369 F.3d at 1314; see also Lewis, 458 F.3d at 1378-79."

3. Following Dysart, the Federal Circuit reversed the

lower court in this case, summarily concluding (without any

citation to the record) that providing Mr. Barnes with notice

of the delay before the effective date of his promotion was

impracticable because he was at sea. Pet. App. 1la. Without

explaining why a harmless error analysis was even appropri-

ate, it also concluded that even if there was a procedural de-

fect, it was harmless: “Barnes did not suffer any prejudice,

as he promptly submitted his written response as soon as he

'' On the basis of this intervening precedent, the Court of Federal

Claims reconsidered its prior decision in this case. Pet. App. 17a. The

court vacated its prior holding that Mr. Barnes had been promoted under

DOPMaA in light of Dysart but granted relief on other grounds.

15

retumed to Japan.” Pet. App. lla. Finally, the Court of Ap-

peals rejected Mr. Barnes’ cross-appeal in which he asked

the Court to reconsider its Dysart decision en banc. Pet.

App. 13a.

REASONS FOR GRANTING THE PETITION

This case, Lewis, and others like them raise significant

and recurring questions regarding how military officers are

promoted — questions that potentially impact thousands of

officers each year and require analysis of whether DOPMA

violates Marbury and the Appointments Clause by creating a

statutory scheme that provides for an efficient and modern

appointments process. The Federal Circuit’s interpretation

of the statute is deeply flawed and rests on an erroneous

premise regarding the separation of powers and Marbury.

Properly understood, DOPMA neither vests Congress with

any appointment power nor encroaches on the power of the

Executive Branch. The statute clearly has the effect that Mr.

Barnes attributes to it, and that effect is compatible with the

Constitution.

Because it has exclusive jurisdiction over claims asserted

by military officers seeking back pay, the Federal Circuit is

in all likelihood the only court of appeals that will have the

opportunity to pass on this issue. Absent review, its deci-

sions, including the decision below, will wrongly inject un-

certainty into an area where certainty and predictability are

paramount; thousands of officers proceed through the mili-

tary promotions system each year, and the efficiency of this

system is integral to the national defense effort. There is no

chance that the Federal Circuit will correct its own error in

interpreting DOPMA. In this case, the Federal Circuit based

its decision on a casual and blatantly incorrect holding re-

garding whether DOPMA’s notice provision had been com-

plied with in an effort to avoid grappling with the implica-

tions of its decision in Dysart. Pet. App. 12a (stating that it

would reach neither the government’s nor Mr. Barnes’ ar-

16

guments based on Dysart). Twice since Dysart, the Court of

Appeals has unequivocally refused to revisit that decision

and thus reaffirmed that petitioner’s reading of DOPMA vio-

lates Marbury and the Appointments Clause. The Court

should grant the petition.

I. THE QUESTION PRESENTED IS IMPORTANT

AND RECURRING

A. The Question Is Recurring

Literally thousands of military appointments take place

each year. From January 3 through September 30, 2006

alone, the Senate confirmed 7,783 Air Force nominees,

8,831 Army nominees, 6,694 Navy nominees, and 1,289 Ma-

rine Corps nominees. See 152 Cong. Rec. D1088 (daily ed.

Nov. 9, 2006). DOPMA governs the appointment of all ac-

tive duty military officers. It is hardly surprising that the

question presented here is a recurring one. To the contrary,

this Court currently has before it another petition raising this

very question and — as this case itself demonstrates — it has

repeatedly been the subject of litigation in the Court of Fed-

eral Claims and the Federal Circuit. See, e.g., Pet. App. la-

106a (reproducing the three lower court decisions in this

case); Lewis, 458 F.3d 1372; Dysart, 369 F.3d 1303;

Rolader, 42 Fed. Cl. 782; see also Law v. United States, 11

F.3d 1061 (Fed. Cir. 1993) (raising same issue under statute

governing Coast Guard promotions). These questions also

regularly arise before the BCNR and its sister boards for the

other armed forces. See, e.g., Amicus Br. of Mr. Barnes, et

al., in Dysart v. United States, 2003 WL 24305578, at *3.

B. The Question Is Important

The Federal Circuit acknowledged that these cases “‘pre-

sent(]} significant questions concerning the appointment proc-

ess for military officers.” Dysart, 369 F.3d at 1306. As ex-

plained in Dr. Lewis’ petition, the Court of Appeals is cor-

rect on that score. See Lewis Pet. at 15-17.

17

First, this case implicates the interpretation of an impor-

tant federal statute governing the appointment of thousands

of military officers every year. In Dysart and Lewis, the

Federal Circuit disguised what is essentially a constitutional

holding that DOPMA violates Marbury and the Appoint-

ments Clause as a holding that DOPMA’s plain terms mean

something other than what they say. The outcome of this

case was a foregone conclusion given that interpretation.

But the Court of Appeals’ interpretation cannot survive

serious scrutiny. DOPMA provides that Mr. Bares was

“appointed” to the next higher rank*on his projected promo-

tion date because he was not previously given proper statu-

tory notice of the delay, nor was it impracticable for. the

Navy to give him such notice. The Court of Appeals’ hold-

ing that any defect in the notice given Mr. Barnes was harm-

less error flows from its misreading of the statute as failing

to provide for automatic appointments. The prejudice to Mr.

Barnes — the loss of a valuable promotion resulting in his

subsequent involuntary release from active duty — is clear

when the statute is read in a straightforward fashion. The

Federal Circuit’s holding also illustrates the limbo in which

its interpretation of DOPMA places military officers — that

interpretation imposes a system under which the President or

his delegate can delay military promotions and remove offi-

cers from the promotion list at any time without regard to

DOPMA.

Second, this case raises core questions about the separa-

tion of powers. The statutory scheme is critical to maintain-

ing an efficient military appointment process, and the ap-

pointment of military officers is unquestionably an area in

which Congress has a significant interest in light of its broad

constitutional powers to maintain a navy and regulate other

military affairs. See U.S. Const. art. I, § 8. In Lewis and Dy-

sart, the Federal Circuit made clear that it viewed DOPMA

as encroaching on Executive power. That court, however,

18

did not even acknowledge that in enacting DOPMA Con-

gress was legislating in an area involving its core powers or

consider the possibility that DOPMA is a balanced approach

to military promotions that respects the appointments system

and also carries out Congress’ duty to provide for and regu-

late the armed forces. See Lewis Pet. at 15-17.

Third, these cases raise the issue whether Marbury cre-

ated an inflexible constitutional rule regarding what Execu-

tive action is necessary to effectuate any and all appoint-

ments under the Constitution. The Federal Circuit based its

analysis on a flawed reading of Marbury. It did not grapple

with the question whether Congress could vary in any way

the way in which the steps in the appointment process are

accomplished. The Court should grant review to determine

whether Marbury’s description of the appointment at issue in

that case in fact created a baseline constitutional rule govern-

ing all appointments over two centuries later.

C. Absent The Court’s Review, The Court Of Ap-

peals’ Decision Creates A Nationwide Rule Gov-

erning The Appointment Of Military Officers

Claims like Mr. Barnes’ are litigated exclusively in the

Federal Circuit, because it is the only court with jurisdiction

to hear appeals regarding officers’ claims for back pay and

retirement pay at the level applicable to the ranks to which

they assert they were promoted. See 28 U.S.C.

§§ 1295(a)(2), (3); see also United States v. Hohri, 482 US.

64, 72 (1987); Lewis Pet. at 17-18. ——

Two judges of the Court of Federal Claims, including in

this case, have read DOPMA to provide for military promo-

tions without raising any constitutional issues. See Pet. App.

76a (holding that the Navy’s delay in removing Lieutenant

Barnes from the promotion list until after the statutory delay

period had expired “accomplished his promotion”), opinion

vacated, 66 Fed. Cl. 497 (reversing prior holding in light of

Dysart), and Rolader, 42 Fed. Cl. at 787 (holding that be-

19

cause officer’s name was not removed from promotion list

prior to the expiration of the delay period, he was promoted

as a matter of law).

The Federal Circuit nevertheless decided Lewis solely

based on its prior holding in Dysart and denied rehearing.

See Lewis, 458 F.3d at 1379 (resolving Dr. Lewis’ argument

that she had been promoted because her name was not re-

moved from the promotion list by the last possible date of

statutory deiay based on Dysart because Dysart was binding

on the panel and “Lewis’ claim is not distinguishable”). The

Federal Circuit refused to reconsider Dysart again here and

engaged in no analysis of DOPMA’s language at all. See

Pet. App. 13a (“Barnes himself recognizes that this panel is

bound to follow Dysart unless and until it is overturned by

the court sitting en banc. We therefore do so and reject the

cross-appeal. Nor are we persuaded, as requested, to pro-

pose en banc review ourselves.”). The Federal Circuit has

thus conclusively demonstrated that it will not revisit this

issue. Absent review, the decision below will create a de

facto nationwide rule.

II. THE DECISION BELOW WRONGLY SUBJECTS

THOUSANDS OF MILITARY OFFICERS TO UN-

WARRANTED PROMOTION DENIALS AND DE-

LAYS

A. DOPMA’s Plain Language Provides For Ap-

pointment When Notice Of A Delay Is Not Prop-

erly Given

In this case, the Federal Circuit refused to reconsider its

flawed interpretation of DOPMA as set forth in Dysart.’

Under the plain language of DOPMA, an officer nominated

for promotion by the President, 10 U.S.C. §§ 618(c)(1),

The flaws in the Federal Circuit’s interpretation of DOPMA are

discussed in greater detail in Dr. Lewis’ petition. See Lewis Pet. at 19-

22.

20

629(b), considered and confirmed for that office by the Sen-

ate, id. § 629(b), and assigned a projected promotion date by

a Service Secretary, id. §§ 624(b), 741(d), is appointed on

his projected promotion date absent statutorily sufficient no-

tice that his appointment will be delayed. Jd. § 624(d). Such

notice must be given prior to the officer’s projected promo-

tion date and, absent notice, the officer will be promoted on

that date unless giving prior notice is impracticable. /d.

§ 624(d). The notice provision ensures that officers are

timely informed of any change in their promotion status and

is merely a reasonable limitation on the statutorily-

recognized executive power to delay or prevent the effectua-

tion of a promotion.

The history of the notification provision confirms this

understanding. When DOPMA was passed in 1980, it pro-

vided only that “(t]he appointment of an officer may not be

delayed under this subsection unless the officer has been

given written notice of the delay.” 94 Stat. 2858. This lan-

guage was amended in 1981, when Congress added the

phrase “unless it is impracticable to give such written notice

before the effective date of the appointment, in which case

such written notice shall be given as soon as practicable.”

Defense Officer Personnel Management Act Technical Cor-

rections Act, Pub. L. No. 97-22 § 4(d)(3)(D), 95 Stat. 127.

The House Report to that amendment noted that under the

language of the original provision, an officer might be pro-

moted simply because notice of a delay had not been trans-

mitted to him or her in a timely fashion:

This amendment recognizes that information

calling into question the qualifications of an

officer for promotion may be revealed only

shortly before the projected date of the pro-

motion and that, in such cases, the officer

may not be reasonably available (e.g., on a

weekend, while on leave or while absent

21

without leave) to receive written notice that

the promotion is being delayed.

H.R. Rep. No. 97-141, supra, at 14. This impracticability

exception would be meaningless under the Federal Circuit’s

reading of the statute. If notice were not necessary at all to

delay or prevent the effectuation of a scheduled promotion,

Congress would have had no reason to add an impracticabil-

ity exception.

The Federal Circuit considered neither the plain language

of DOPMA nor the legislative history of the notice provision

in reaching its decision in this case, constrained as it was by

its opinion in Dysart. As discussed below, the constitutional

concerns underpinning that decision are unfounded.

B. DOPMA Does Not Violate The Appointments

Clause

The Federal Circuit’s strained statutory construction in

Dysart, which has since been reaffirmed in Lewis and the

decision below, was colored by the underlying premise of its

decision — namely, the court’s belief that the statute raised

Appointments Clause problems because: (1) the President

has absolute discretion regarding whether to appoint an offi-

cer who has been confirmed to the next highest rank and

grade; and (2) the “shall be promoted” language of the stat-

ute improperly cabins that discretion. See, e.g., Lewis, 458

F.3d at 1378-79 (noting that in Dysart the court “further held

that the statute could not constitutionally provide for auto-

matic appointment because ‘military officers must be ap-

pointed pursuant to the constitutional process, which requires

appointments at the discretion of the President, not automatic

appointments pursuant to statute’”’) (quoting Dysart, 369

F.3d at 1315); Dysart, 369 F.3d at 1314 (stating that

“(p]rotecting the role of the President in the appointment

process from legislative encroachment was in fact one of the

goals of the Constitutional Convention”); see also id. at 1316

(“The Constitution contemplates that, after confirmation, the

22

President may refuse to execute the appointment.”). Under

the Federal Circuit’s view of the Appointments Clause,

therefore, no limits may be placed on the President’s discre-

tion to appoint or choose not to appoint officers. As dis-

cussed more fully in Dr. Lewis’ petition, that view is incor-

rect. See Lewis Pet. at 23-29.

First, this Court has held that the Appointments Clause is

violated when Congress enlarges its own power during the

appointments process. See Buckley v. Valeo, 424 US. 1

(1976) (ho!ding that Congress could not constitutionally pro-

vide for appointment of members of the Federal Election

Commission by the President pro tempore of the Senate and

the Speaker of the House). DOPMA does not involve any

expansion of congressional power. The only power Con-

gress retains under the statute is the Senate’s power to con-

firm (or choose not to confirm) military officers. Contrary to

the Federal Circuit’s view, the President and his delegates

maintain their discretion. The critical decisions at issue un-

der the scheme — whether to nominate an officer for promo-

tion, whether to allow the promotion of a confirmed officer

to go through as scheduled or to delay that promotion,

whether to remove the officer’s name from the promotion list

during any delay, and of course whether to remove or disci-

pline an officer who has already been promoted — all still

rest with the Executive. All DOPMA requires is that notice

of a delay be given before the effective date of an appoint-

ment unless it is truly impracticable to do so, and that execu-

tive discretion be exercised within a reasonable time frame.

Second, rather than violating the separation of powers,

DOPMA instead strikes a necessary balance between the

President’s power in the area of appointments and Congress’

core constitutional power to provide for and regulate the

military. This Court “ha[s] never held that the Constitution

requires that the three branches of Government operate with

absolute independence.” Morrison v. Olson, 487 U.S. 654,

23

693-94 (1988) (internal quotation marks omitted). When

proposing and enacting DOPMA, the DOD and Congress

both recognized the need for an efficient, modern process to

manage the high volume of promotions in today’s military.

See S. Rep. No. 96-375, supra, at 75; H.R. Rep. No. 96-

1462, supra, at 9, 47, 56. The reasonable procedures govern-

ing military promotions set forth in the Act are simply

mechanisms to ensure that this need is met and thus fall

squarely within Congress’ core powers. See U.S. Const. art.

I, § 8.

Third, DOPMA does not violate Marbury. The Federal

Circuit was wrong to assume that Marbury requires the ap-

pointments process to occur in a particular manner.'* Mar-

'? If there were any doubt about this conclusion, it is resolved by the

fact that Congress has greater flexibility in the appointment of inferior

officers like Mr. Barnes. See, e.g., Weiss v. United States, 510 U.S. 163,

186-87 (1994) (Souter, J., concurring). In particular, Congress may vest

the appointment of these officers in the President alone or in other gov-

emment entities. U.S. Const. art. I], § 2, cl. 2. The Federal Circuit in

Dysart recognized that Congress may vary the appointments process for

such officers, 369 F.3d at 1314, but utterly failed to address the import of

this fact for the appointment of military officers. It is true that Congress

has not chosen to vary the appointment process for most military officers.

However, given its greater power to disregard the role of the President in

the appointments process for inferior officers altogether, it follows that

Congress must, at the very least, have the flexibility to set up a scheme

for the appointment of officers that ensures all the constitutionally re-

quired steps of the military promotion process occur as efficiently as pos-

sible. That is al] that it has done with the current statutory framework.

'* Under the Federal Circuit’s interpretation, giving the President un-

fettered discretion in appointments, Congress would never be able to

craft efficient appointments schemes and the statutes currently providing

similar mechanisms for appointments in the Coast Guard and the reserve

officer corps, see 14 U.S.C. § 271 et seg. and 10 U.S.C. § 14001 et seq.,

would be unconstitutional. Moreover, taking the Federal Circuit’s posi-

tion to its logical extreme, Congress would never be able to require that

military officers have any particular qualifications for their positions as

the Executive Branch would have unlimited decision-making power re-

garding who is nominated and appointed to be an officer. As even the

24

bury does not create any rule, much less a constitutional rule,

regarding the precise action required to effectuate an ap-

pointment under all circumstances. Rather, it generally pro-

vides that an appointment is made “when it is shewn that [the

President] has done every thing to be performed by him.”

Marbury, 5 U.S. at 157.’ Mr. Barnes and other officers like

him are nominated by the President under a statute that the

President understands will make a confirmed officer’s ap-

pointment effective unless the officer is properly notified of

a delay and his or her name is then removed from the promo-

tion list. Thus, the President’s nomination and the Execu-

tive’s failure to take subsequent action that complies with

statutory procedures to delay or prevent the appointment is

the showing Marbury requires — that the President “has

done every thing to be performed by him.” Jd. ( also stating

that “this [appointment] power has been exercised when the

last act, required from the person possessing the power, has

been performed”’).

Ill, THE COURT CAN REACH THE STATUTORY

AND CONSTITUTIONAL ISSUE IN THIS CASE

The Federal Circuit’s cursory conclusion that it was im-

practicable to afford Mr. Barnes prior notice poses no im-

pediment to this Court’s review of the important issues dis-

cussed above. The impracticability exception to DOPMA’s

normal notice requirement was intended to apply to officers

who are not at their place of duty for one reason or another,

not to those who are on duty and capable of being reached.

Court of Appeals has acknowledged, that is simply not the law. See

Lewis, 458 F.3d at 1379 (recognizing that “Congress can restrain the

President’s authority to appoint particular classes of persons to officer

positions or bar appointment unless particular procedures are followed”’).

'’ Moreover, Marbury dealt with a particular appointment process; it

did not foreclose the possibility that other processes could also satisfy the

requirements of the Appointments Clause.

25

See H.R. Rep. No. 97-141, supra, at 14. The Federal Circuit

nonetheless rested its decision on the notion that it was im-

practicable to notify Mr. Barnes of the delay of his promo-

tion before the effective date because he was at sea. Pet.

App. lla. Because the facts surrounding provision of notice

to Mr. Barnes were undisputed, the Federal Circuit’s imprac-

ticability determination is a legal conclusion subject to de

novo review. E.g., Imperial Cas. & Indem. Co. v. Chicago

Housing Auth., 987 F.2d 459, 461 (7th Cir. 1993) (require-

ment that notice be served “as soon as practicable” subject to

analysis as matter of law if facts are undisputed); see also

SMS Data Prods. Group, Inc. v. United States, 853 F.2d

1547, 1553-54 (Fed. Cir. 1988) (interpreting “practicable” de

novo according to plain meaning).

There is no dispute that the Navy could have communi-

cated with Mr. Barnes when he was aboard the McCain. In-

deed, it did communicate with him, sending him at least two

official e-mails during his deployment, including one on

March 30, 1998 regarding the Board of Inquiry. JA 405,

406.'° To comply with the statutory notice requirement, the

Navy could simply have sent him another such e-mail before

his April 1, 1998 projected promotion date. Furthermore, it

had telephone, fax, and electronic communication with the

McCain at all pertinent times.’

The fact that an officer in Japan thought there were rea-

sons to defer providing Mr. Barnes that notice, see page 11,

'© “On or about March 30, 1998, while 1 was still aboard the

McCain, NSGA Misawa advised me by email that my case was being

referred to a Board of Inquiry (BOI). There was no mention of a promo-

tion delay... . On April 15, 1998, while I was still aboard the McCain,

NSGA Misawa advised me by email that my promotion had been de-

layed.” JA 405-06.

'’ Mr. Bares confirmed this in his uncontested declaration. “The

ship also had fax and email capability. During the time I was aboard,

there were no interruptions in the McCain’s ability to communicate with

the rest of the Navv.” JA 405.

26

supra, is irrelevant. E.g., American Heritage Dictionary 882

(4th ed. 2000) (impracticable means “impossible to do or

carry out”) (emphasis added); Random House Webster’s Un-

abridged Dictionary 962 (2d ed. 2001) (impracticable means

“incapable of being put into practice with available means’)

(emphases added); see also Pet. App. 68a. DOPMA requires

an inquiry into whether notice was practicable, not whether

an officer subjectively considers notice practicable." The

Federal Circuit’s impracticability determination here was

plainiy wrong, and should not be permitted to insulate the

court’s otherwise incorrect decision from review.'? The

'8 This Court had occasion last Term to consider two different uses

of the term “practicable” in Article 36 of the Uniform Code of Military

Justice, 10 U.S.C. § 836 (2000) (“UCMIJ”). One required the President

to prescribe regulations for military tribunals that “so far as he con-

sider[ed] practicable” complied with the laws and rules generally recog-

nized for the trial of criminal cases in the district courts; the other simply

stated that all rules and regulations for military commissions and courts-

martial “shal] be uniform insofar as practicable.” Hamdan v. Rumsfeld,

126 S. Ct. 2749, 2790 (2006) (emphases added). The Court observed

that a determination as to whether something is practicable is different

from a determination as to whether something is considered practicable.

Id. at 2790-92. Because DOPMA requires notice before the effective

date of a promotion “unless it is impracticable,” 10 U.S.C. § 624(d)(3)

(emphasis added), it falls in the former category and determinations un-

der it are entitled to reduced deference, if any. See Hamdan, 126 S. Ct. at

2792 & n.51; see also id. at 2801 (Kennedy, J., concurring) (difference

between the two UCM3J subsections “suggests, at the least, a lower de-

gree of deference for . . . determinations” under the second subsection)

(emphasis added). No amount of deference saves the Navy’s failure to

give prior notice in this case because the Navy was in communication

with the McCain (and therefore Mr. Barnes) at all times.

'? The Federal Circuit’s alternative holding that any defect in the no-

tice Mr. Barnes received was harmless, Pet. App. Ila, assumes the cor-

rectness of its interpretation of DOPMA. If DOPMA does not provide

for appointments where the delay provisions have not been complied

with, as the Federal Circuit held in Dysart and reiterated in Lewis, then a

failure to give notice of a delay prior to a projected promotion date could

indeed be harmless because the officer would have no expectation of

27

Court should resolve the Court of Appeals’ clear errors and

grant review to reach the important main issue presented.

CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

EUGENE R. FIDELL WALTER DELLINGER

FELDESMAN TUCKER LEIFER (Counsel of Record)

FIDELL LLP MATTHEW M. SHORS

2001 L Street, N.W. NILAM A. SANGHVI

Second Floor ANNE N. CorRTINA*

Washington, D.C. 20036 O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

* Admitted only in New York

Attorneys for Danny T. Barnes

May 4, 2007

appointment under the statute. But if DOPMA does provide for ap-

pointments, as Mr. Barnes contends and as the Court of Federal Claims

held initially here and in Rolader, the error cannot be harmless. As the

Court of Federal Claims correctly recognized, the prejudice is “self-

evident”: the improper notice led to “improper delays in [Mr. Barnes’]

promotion, the subsequent removal of his name from the promotion list

and consequent imputed nonselection and involuntary termination from

the Navy.” Pet. App. 26a.