Appendix — Barnes v. United States, 128 S. Ct. 66 (2007) (No. 06-1466)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

APPENDIX A

Danny T. BARNES, Plaintiff-

Cross Appellant,

Vv.

UNITED STATES, Defendant-

Appellant.

Nos. 06-5030, 06-5036.

United States Court of Appeals,

Federal Circuit.

Jan. 4, 2007.

Background: Former Navy officer brought suit against

the United States, alleging that his involuntary discharge

after being passed over for promotion was improper because

his promotion to lieutenant commander occurred by

operation of law. Vacating opinion at 57 Fed. Cl. 204,

granting officer’s motion, for judgment on the administrative

record, the Court of Federal Claims, James F. Merow, Senior

Judge, 66 Fed. Cl. 497, entered judgment for officer. United

States appealed.

Holdings: The Court of Appeals, Michel, Chief Judge,

held that:

(1) alleged procedural defects concerning Navy’s decision to

remove officer’s name from promotion list were subject

to judicial review;

(2) Navy complied with all relevant statutory and regulatory

procedures in delay of lieutenant’s promotion; and

(3) because there was no procedural error in the delay of his

promotion, later removal of lieutenant’s name from

promotion list occurred during a lawful delay period, so

his first nonselection was valid and he was properly

discharged following his second nonselection.

Reversed.

Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP, of

Washington, DC, argued for plaintiff-cross appellant. With

him on the brief was Matthew S. Freedus.

Douglas K. Mickle, Trial Attorney, Commercial Litigation

Branch, Civil Division, United States Department of Justice,

of Washington, DC, argued for defendant-appellant. With

him on the brief were Peter D. Keisler, Assistant Attorney

General, David M. Cohen, Director, and Bryant G. Snee,

Assistant Director. Of counsel on the brief was Captain

Thomas B. Mernitt, Jr., General Litigation Division, Office

of the Judge Advocate General, United States Department of

the Navy, of Washington, DC. Of counsel was Lt. Cdr.

Thomas F. Leary.

Before MICHEL, Chief Judge, LINN and PROST, Circuit

Judges.

MICHEL, Chief Judge.

This case concerns a Navy officer who was involuntarily

discharged following his second non-selection for

promotion, in accordance with 10 U.S.C. § 632(a). The

government appeals from a final judgment of the United

States Court of Federal Claims, reinstating Danny T. Barnes

as a lieutenant, with back pay. The trial court ruled on the

administrative record that there was an unlawful delay in his

promotion while certain misconduct was further evaluated by

high Navy officials. Barnes v. United States, No. 99-883 C

(Fed. Cl. Oct. 7, 2005). Barnes cross-appeals, seeking

reversal of Dysart v. United States, 369 F.3d 1303 (Fed. Cir.

2004), which precluded him from being promoted to

lieutenant commander by operation of law, the relief he

initially sought below. We reject the cross-appeal, but

conclude that the court erred in finding the first non-selection

invalid where, we hold, the Navy adhered to the relevant

statutory and regulatory procedures in delaying his

promotion and later removing his name from the promotion

list. We therefore reverse.

I. BACKGROUND

The underlying facts are well-summarized by the two

thorough opinions below and will not be set forth in similar

detail here. See Barnes v. United States, 66 Fed. Cl. 497,

497-98 (Fed. Cl. 2005) (“Barnes II’); Barnes v. United

States, 57 Fed. Cl. 204, 208 (Fed. Cl. 2003) (“Barnes I’).

Briefly, Barnes enlisted in the Navy on June 20, 1983. He

rose through the ranks and was promoted to lieutenant on

June 1, 1992. Barnes was selected by a board for promotion

to lieutenant commander in the competitive category of

special duty officer (cryptology) on April 30, 1997. His

nomination was confirmed by the Senate on November 8,

1997.' See 143 Cong. Rec. $12214 (daily ed. Nov. 8, 1997)

(confirming those nominations received by the Senate and

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

1997)). His promotion never became effective, however,

' In fact, Barnes received pay at the higher rank for one year starting

on April 1, 1998, his projected promotion date, but was later asked to pay

back the difference of approximately $2,500.

because he was later disciplined for attempting to arrange

off-duty liaisons with five enlisted women, two of whom

were his subordinates.

Following Barnes’ non-judicial punishment proceedings

concerning that misconduct, a formal objection to his

promotion was lodged by a lieutenant commander in the

Performance Division of the Navy on February 19, 1998.

Barnes subsequently received notice that his promotion was

delayed “unt:] all related administrative or disciplinary action

is completed.” Although that notice letter was dated March

17, 1998, Barnes was aboard the USS John S. McCain in the

Persian Gulf at the time; thus, he did not receive it until

April 21, 1998, when he returned to his base at Misawa,

Japan.’ He responded promptly on April 25, 1998, enclosing

four character references. On May 1, 1998, Barnes’

commanding officer in Japan supported his promotion to

lieutenant commander, but recommended that his promotion

be delayed such that he would be the last in his year group to

be promoted.

Meanwhile, on March 19, 1998, Barnes was directed to

show cause why he should be allowed to remain in the Navy,

on the basis of the same misconduct. On May 26, 1998, a

Board of Inquiry (“BOI”) was appointed. On May 27, 1998,

the BOI unanimously found that Barnes had engaged in

conduct unbecoming an officer, failed to demonstrate

acceptable qualities of leadership, and failed to conform to

prescribed standards of military deportment; nonetheless, by

a vote of 2 to 1, it recommended retaining him in the Navy.

Ratification and extension of the initial delay in Barnes’

promotion to lieutenant commander was requested by the

Barnes, however, acknowledges receiving email notification of his

promotion delay on April 15, 1998.

Bureau of Naval Personnel on August 14, 1998 and

approved by the Assistant Secretary of the Navy on August

24, 1998. On September 8, 1998, Barnes was notified that

the Secretary of the Navy was considering the removal of his

name from the promotion list. He responded by letters dated

September 24, 1998 and November 3, 1998. In addition, his

commanding officer wrote two letters of endorsement, dated

October 2, 1998 and November 18, 1998. A memorandum

addressed to the Special Assistant Congressional Liaison

Office, dated December 14, 1998, indicated that Barnes’

suitability for promotion was still being reviewed by the

chain of command. On March 22, 1999, the Chief of Naval

Personnel determined that Barnes was not qualified for

promotion to lieutenant commander and requested removal

of his name from the promotion list; the Secretary of the

Navy approved on April 26, 1999, and Barnes was notified

on May 7, 1999. The removal of his name was deemed a

non-selection for promotion pursuant to 10 U.S.C. §

629(c)(2). Subsequently, he was again considered for

promotion by the next selection board. Following Barnes’

second non-selection for promotion, he was involuntarily

discharged, pursuant to 10 U.S.C. § 632(a), on March 1,

2001.

Barnes subsequently accepted a reserve commission as a

lieutenant in the Independent Ready Reserves and received

$72,107.28 in separation pay. On July 15, 2003, he tendered

his resignation to the Naval Reserve Personnel Center, which

ended his obligation to the United States Navy. The Navy

accepted his resignation by letter dated July 29, 2003, and

Barnes was honorably discharged from the United States

Naval Reserve, effective July 17, 2003.

**k *

On October 21, 1999, Barnes filed suit in the Court of

Federal Claims. He alleged that the delay in his promotion

and the ultimate removal of his name from the promotion list

were not in accordance with statutory and regulatory

procedures. Barnes I, 57 Fed. Cl. at 205. He further

contended that the failure of the Navy Board for Correction

of Military Records (“BCNR”) to grant him relief was

contrary to law or arbitrary and capricious.” Id. In ruling on

cross-motions for judgment on the administrative record, the

court agreed with Barnes that there had been vanous

procedural violations such that the delay was improper and

had no effect on his promotion; in other words, the court

below ruled that Barnes had been promoted by operation of

law under 10 U.S.C. § 624(a)(2). Jd. at 218-19. Having

ruled that the BCNR’s denial of relief was thus contrary to

law, the court declined to reach the issue of whether its

reliance on the unclean hands doctrine was arbitrary and

capricious. /d. at 221.

This decision was revisited in the wake of Dysart, which

held that 10 U.S.C. § 624 “does not provide for automatic

appointment without action by the President.” 369 F.3d at

1313. Barnes conceded that his first three causes of action,

seeking promotion to lieutenant commander by operation of

law,’ had to be dismissed in light of Dysart. Barnes II, 66

Fed. Cl. at 499. His alternative argument--that he was

> Barnes filed his Application for Correction of Naval Records on

May 16, 2000. At his request, the Court of Federal Claims stayed this

litigation pending the BCNR’s decision. It denied relief on January 11,

2001 and denied reconsideration on December 19, 2001. See Barnes I//,

66 Fed. Cl. at 498.

Barnes’ first cause of action alleged procedural error when he was

not notified of his promotion delay until after its effective date, in

violation of 10 U.S.C. § 624(d)(3) and SECNAVINST 1420.1A ¥ 23c.

His second cause of action alleged that the delay in his promotion

expired on May 27, 1998. His third cause of action alleged that he was

not provided notice, as required by § 624(d)(3), of new grounds for delay

in August 1998. See Barnes I/, 66 Fed. Cl. at 499 n. 2.

unlawfully dismissed because his deemed non-selection was

based on an improper removal of his name from the

promotion list--remained to be considered. Jd. at 499, 503.

The court again agreed with Barnes that the Navy failed to

follow its regulations in removing his name from the

promotion list, rendering the first non-selection invalid. /d.

at 503-05. The court incorporated by reference its analysis

from the earlier decision and reasoned that, “[a]bsent a valid

‘first’ deemed non-selection, there was no ‘second’ failure of

selection” to justify his involuntary discharge, as required

under 10 U.S.C. § 632(a). Jd. at 505.

Applying the constructive service doctrine, the trial court

concluded that Barnes was entitled to back pay and benefits

retroactive to when he was improperly separated in 2001. /d.

at 505-06. In addition, with constructive credit, Barnes

reached twenty years of active service and became eligible to

retire in February 2006. The court expressly rejected the

government’s argument that Barnes had waived his night to

reinstatement when he resigned from the Naval Reserves.

Id. at 506-07. The Navy was ordered to reinstate Barnes

with back pay. /d. at 508. Judgment was entered

accordingly. No actions were taken by the Navy during the

pendency of this appeal.

Timely notices of appeal and cross-appeal followed on

December 2, 2005 and December 15, 2005, respectively.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

A decision granting or denying a motion for judgment

upon the administrative record is reviewed without

deference. We apply the same standard of review as the

United States Court of Federal Claims, which means “we

will not disturb the decision of the corrections board unless it

is arbitrary, capricious, contrary to law, or unsupported by

substantial evidence.” Chambers v. United States, 417 F.3d

1218, 1227 (Fed. Cir. 2005). The tnal court’s legal

conclusions will not be reversed unless incorrect as a matter

of law, and its factual findings will not be disturbed unless

clearly erroneous. Heisig v. United States, 719 F.2d 1153,

1158 (Fed. Cir. 1983). Statutory or regulatory interpretation,

however, is reviewed without deference. Strickland v.

United States, 423 F.3d 1335, 1337 (Fed. Cir. 2005).

As a threshold matter, the government asserts that alleged

procedural defects concerning the Navy’s decision to remove

Bames’ name from the promotion list are not subject to

judicial review. This argument was specifically rejected

below. Barnes II, 66 Fed. Cl. at 499-503. We agree with the

trial court.

It is well-established that although the merits of military

promotion decisions are nonjusticiable, “a challenge to the

particular procedure followed in rendering a_ military

decision may present a justiciable controversy.” Adkins v.

United States, 68 F.3d 1317, 1323 (Fed. Cir. 1995). Indeed,

Dysart itself recognized that courts can evaluate whether the

military follows the procedures mandated by statute or by its

own regulations when making promotion decisions. See 369

F.3d at 1315; see also Lewis v. United States, 458 F.3d

1372, 1377 (Fed. Cir. 2006) (observing that courts can

review promotion decisions for violations of the

Constitution, statutes, or regulations). As this is the precise

nature of Barnes’ challenge, it is properly before us.

On the merits, the government argues that the Navy

complied with all relevant statutory and regulatory

procedures. We agree that the court erred in finding

otherwise.

Under the relevant statute and the accompanying Navy

regulation, a promotion may be delayed if (A) sworn court-

martial charges have been received and such charges have

not been disposed of; (B) an investigation is being

conducted to determine whether disciplinary action of any

kind should be brought against the officer; (C) a board of

officers has been convened to review the record of the

officer; or (D) a criminal proceeding in a federal or state

court is pending against the officer. 10 U.S.C. § 624(d)(1);°

SECNAVINST 1420.1A 9 23a. A promotion may also be

delayed 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.” 10 U.S.C. § 624(d)(2); see also

SECNAVINST 1420.1A J 23a. In any event, notice of the

grounds for the delay must be given, “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,” so the officer will

have an opportunity to submit a written statement in

response to the Secretary of the Navy. 10 US.C. §

624(d)(3); see also SECNAVINST 1420.1A J] 23c.

Moreover, the delay may not last “for more than six months

after the date on which the officer would otherwise have

This statutory provision was later amended on October 17, 2006, see

P.L. 109-364, 120 Stat. 2181, 2183, to include another subparagraph:

“(E) substantiated adverse information about the officer that is material

to the decision to appoint the officer is under review by the Secretary of

Defense or the Secretary concerned.”

10a

been appointed unless the Secretary concerned specifies a

further period of delay,” and even then, no more than 18

months after the officer would otherwise have been

appointed. 10 U.S.C. § 624(d)(4); see also SECNAVINST

1420.1A ¥ 23d.

Here, the court agreed with Barnes that the delay in his

promotion was not supported by any of the grounds listed in

§ 624(d) and J 23a. Yet, the March 17, 1998 notice stated

that the reason for the delay in Barnes’ promotion was his

conduct unbecoming an officer, for which he had received

non-judicial punishment in a proceeding that was completed

on November 24, 1997. It expressly referenced

SECNAVINST 1420.1A and observed “you may not be

qualified for permanent promotion.” In other words, the

proffered reason for the delay was the catch-all provision of

§ 624(d)(2). The memorandum clearly implies that Barnes’

attempted fraternization with female subordinates was cause

to believe he was not qualified to be promoted. The court

therefore erred by interpreting this statement as merely

“posing a question” and “not a finding of cause to believe

Barnes was not mentally, physically, morally, or

professionally qualified to perform the duties of the higher

rank.” Barnes I, 57 Fed. Cl. at 211. Further, the court

improperly concluded that a separate order to show cause on

fitness for promotion was required. The statute merely

contemplates giving notice to the officer of the grounds for

the delay; it does not suggest any requirement to provide an

even earlier notice that one of the statutory grounds for delay

may exist. Moreover, contrary to the ruling of the trial court,

there is no requirement in the statute or the accompanying

regulation for a formal “finding” on fitness before a

promotion may be delayed.

The court further found that, even if the delay had been

supported by one of the enumerated statutory reasons, it

lla

ended by its own terms when “all related administrative or

disciplinary action [wa]s completed,” which the trial court

found was on May 27, 1998. Jd. at 213. This was also

erroneous. While it is true that Barnes’ separation

proceedings before the BOI ended on May 27, 1998, the

record clearly demonstrates that whether he was suitable for

promotion to lieutenant commander was still pending review

by his chain of command. Indeed, Bares himself

recognized this to be the case in his letter dated Apml 1,

1999, wherein he “respectfully request(s] that the Navy

drops the effort to remove [him] from the promotion list, and

restore his promotion effective 01 April 1998.”

In the alternative, Barnes argues that the Navy failed to

comply with the notice requirement by not notifying him of

the March 17, 1998 letter before the effective date of his

promotion, i.e., April 1, 1998. We disagree. The statute and

accompanying regulation expressly provide an exception

where notice is “impracticable”; here, Barnes was at sea.

Moreover, Barnes did not suffer any prejudice, as he

promptly submitted his written response as soon as he

returned to Japan. Meanwhile, the Navy neither took action

against him nor made any decision to do so. Thus, even if

the court had correctly concluded that there was a procedural

defect, we hold it was harmless.

With respect to the extension of the delay period beyond

six months, we agree with the court that ratification was

sought before six months had expired and the total period of

delay before Barnes’ name was removed was less than

eighteen months, in compliance with statutory and regulatory

requirements. The trial court, however, found that the failure

to notify Barnes that the delay had been extended in August

1998 was a procedural defect, emphasizing that “the officer

must know about the delay in order for the officer to

respond.” Barnes I, 57 Fed. Cl. at 217. Yet, neither §

12a

624(d)(4) nor SECNAVINST 1420.1A 4 23d requires a

separate notice to be provided if a delay in promotion is

extended beyond six months. We are not persuaded by the

argument that the notice requirement of § 624(d)(3) and {

23c applies. The government correctly argues that an officer

must be notified of the grounds for a delay, not its duration.®

Here, the underlying reason for delay did not change.

Barnes already knew that his promotion was being delayed

due to his misconduct. He not only had the opportunity to

respond but had actually submitted multiple written

responses, dated April 25, 1998, September 24, 1998, and

November 3, 1998, respectively.

We therefore conclude that there was no procedural error

in the delay of Bares’ promotion. As such, we necessarily

find that the later removal of his name from the promotion

list occurred during a lawful delay period. Thus, the first

non-selection was valid, and Barnes was properly discharged

following his second non-selection.

In light of this holding, we need not reach the

government’s alternative argument that Barnes is precluded

from seeking reinstatement after Dysart because allowing

such a remedy for the alleged procedural errors would

encroach upon the President’s appointment authority. Nor

do we need to decide whether Bares waived his right to

reinstatement when he voluntarily resigned from the Naval

Reserves. We further decline to resolve whether the

BCNR’s denial of relief was otherwise improper, an issue

that the tnal court never decided in the first instance.

As such, we reject Barnes’ argument that the August 1998 extension

of the delay was procedurally defective for failing to specify the further

period of delay.

13a

Although he argues that it was wrongly decided, 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 propose en banc review

ourselves.

Ill. CONCLUSION

For these reasons, the judgment of the Court of Federal

Claims is

REVERSED.

14a

APPENDIX B

United States Court of Federal Claims.

Danny T. BARNES, Plaintiff,

The UNITED STATES, Defendant.

No. 99-883C.

June 22, 2005.

Background: Former Navy officer brought suit against

the United States, alleging that his involuntary discharge

after being passed over for promotion was improper because

his promotion to lieutenant commander occurred by

operation of law.

Holding: The Court of Federal Claims, Merow, Senior

Judge, held that Navy did not comply with its regulations

when it removed officer’s name from promotion list during

period when there were no statutory or regulatory grounds

for delay of promotion, and thus removal did not constitute a

“nonselection” for promotion for purposes of statute

mandating involuntary discharge after two nonselections for

promotion.

Judgment for plaintiff.

Opinion, 57 Fed. Cl. 204, vacated.

15a

Eugene R. Fidell, Washington, D.C., for plaintiff. Of

counsel was Charlotte E. Cluverius, Washington, D.C.

Douglas K. Mickle, Trial Attorney, Commercial Litigation

Branch, Civil Division, United States Department of Justice,

Washington, D.C., for defendant. With him on the briefs

were Peter D. Keisler, Assistant Attorney General, David M.

Cohen, Director, and Bryant G. Snee, Assistant Director. Of

counsel was Capt. Thomas B. Merrit, Jr., United States

Marine Corps, Department of the Navy, Office of the Judge

Advocate General, General Litigation Division, Washington,

D.C.

OPINION AND ORDER

MEROW, Senior Judge.

Lt. Barnes enlisted in the Navy on June 20, 1983, and

began his Naval Reserve Officer Training on August 11,

1984. Administrative Record (“A.R.”) I at 1, 40. He was

promoted to ensign on May 13, 1988, to lieutenant junior

grade on May 25, 1990, and to lieutenant on June 1, 1992.

A.R. at 119-21. On April 30, 1997, Lt. Barnes was selected

for promotion to lieutenant commander by the Fiscal Year

1998 Promotion Board. A.R. III at 2-6. The Secretary of the

Navy forwarded the Promotion Board’s report, including Lt.

Barnes’ name, to the Secretary of Defense for approval on

August 29, 1997. A.R. [II at 1. On September 30, 1997, the

Secretary of Defense, on the President’s behalf, approved the

Promotion Board’s selections. /d. On October 29, 1997, Lt.

Barnes’ nomination for promotion to lieutenant commander

was submitted to the Senate, 143 Cong. Rec. $11390,

S11391 (Oct. 29, 1997), and was subsequently confirmed.

143 Cong. Rec. $12214-03 (Nov. 8, 1997).

l6a

Lt. Barnes was not appointed to a lieutenant commander

position, and on September 8, 1998, the Chief of Naval

Personnel notified Lt. Barnes that the Secretary of the Navy

was considering removing his name from the promotion list.

A.R. IV at 10. On March 22, 1999, the Chief of Naval

Personnel recommended that Lt. Barnes’ name be removed

from the promotion list. A.R. IV at 2. On Apmil 26, 1999,

that recommendation was approved by the Secretary of the

Navy. /d. By statute, the removal of his name from the

promotion list was deemed a nonselection for promotion;

therefore, his subsequent failure to be selected for promotion

in 2001 was considered his second nonselection which, also

by statute, resulted in his involuntary discharge from the

Navy on March 1, 2001. 10 U.S.C. §§ 629(c)(2), 632(a).

Pl.’s Cross-Motion, App. at 4.' [FN1] (“Your second failure

of selection at the Fiscal Year 2001 Active Duty Line

Lieutenant Commander Selection Board dictates you be

separated from active duty no later than 1 March 2001.”)

The Board for Correction of Naval Records (“BCNR”’)

twice considered plaintiff's requests for relief. On May 16,

2000, prior to his involuntary termination, Lt. Barnes

submitted an Application for Correction of Naval Records.

Supplemental Administrative Record (“S.A.R.”), Tabs 1 &

2. The Application asserted that because the Navy failed to

follow its procedures in delaying his promotion prior to the

removal of his name from the promotion list, he was

promoted as a matter of law under 10 U.S.C. § 624(a)(2)

which provides that “[e]xcept as provided in subsection (d),

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.”

Although not numbered, the August 8, 2000 letter to Barnes

informing him he was involuntarily terminated from the Navy because

his failure of selection by the Fiscal Year 2001 Selection Board was his

“second failure,” is the fourth page of the Appendix.

17a

(emphasis supplied). While a delay of promotion extends

the period prior to appointment, Lt. Barnes’ promotion was

delayed. He asserts the delay was in contravention of

procedural regulations.

At plaintiff's request, on May 17, 2000, the court stayed

this litigation pending the Board’s decision. On January 11,

2001, the Board denied the Application. S.A.R., Tab 6. On

November 26, 2001, the Assistant General Counsel

(Manpower and Reserve Affairs) requested the Board

reconsider. Second S.A.R. at 4. On December 4, 2001, the

court continued its stay pending the Board’s reconsideration.

On December 19, 2001, the Board again denied relief,

including Lt. Barnes’ request for removal of any failure of

selection to lieutenant commander from his record, and

cancellation of his March 1, 2001 discharge from the Navy.

Id. at 2-3.

Plaintiff asserts the removal of his name from the

promotion list did not comport with statutory and regulatory

constraints, therefore he was not twice nonselected for

promotion by valid proceedings and his termination from the

Navy was improper. He seeks reinstatement and backpay.

Plaintiff also requested that his promotion be recognized as a

matter of law. The court previously entered a liability

determination on the administrative record, in Lt. Barnes’

favor, finding he was promoted as a matter of law. Barnes v.

United States, 57 Fed. Cl. 204 (2003). Thereafter,

proceedings concerned the appropriate amount and nature of

relief. Following the Federal Circuit’s decision in Dysart v.

United States, 369 F.3d 1303 (Fed. Cir. 2004), and ensuing

supplemental briefing and oral argument, the court must

revisit its decision in Barnes and now address plaintiff's

alternative arguments.

18a

Promotion as a matter of law

Pursuant to 10 U.S.C. § 624(a)(2), officers on a promotion

list “shall be promoted to the next higher grade” upon

vacancy, except under certain enumerated instances in which

case appointment may be delayed. Following Presidential

nomination and Senate confirmation, Lt. Barnes’ promotion

was delayed. Finding several procedural, regulatory and

statutory infirmities with the delay, the court construed “shall

be promoted” as a statutory mandate that caused plaintiff's

promotion. 57 Fed. Cl. at 219. See Law v. United States, 11

F.3d 1061, 1065 (Fed. Cir. 1993) (noting that Law was not

asking the court to order his promotion, but to recognize that

it had occurred; that precedent holding the court had no

authority to grant the promotion was inapplicable; and that

the Court of Federal Claims had jurisdiction to grant the

relief requested); Voge v. United States, 844 F.2d 776, 782

(Fed. Cir. 1988) (“[A]bsent a statute or regulation entitling a

service member to a promotion as a matter of law, the

Claims Court has no authority to entertain” a claim for

promotion. ).

Subsequently, Dysart v. United States, in which plaintiff

appeared as one of four amici curiae, held that despite

statutory promotion direction, “[t]he President’s decision not

to appoint is a discretionary act that cannot be reviewed by a

court.” 369 F.3d at 1317 (citing Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 165-67, 2 L. Ed. 60 (1803)). Article II,

Section 2, Clause 2 of “the Constitution provides that the

President has the authority to nominate and, ‘by and with the

Advice and Consent of the Senate,’ to appoint ‘Officers of

the United States.’” “The President’s decision here whether

or not to exercise his appointment power is discretionary,

and we hold that the President cannot be compelled to

appoint military officers.” 369 F.3d at 1306, 1317.

Accordingly, Lt. Barnes reluctantly concedes the first three

19a

causes of action of his First Amended and Supplemental

Complaint’ for promotion by operation of law, are due to be

dismissed based on Dysart. The “promotion” conclusion

previously reached in Barnes, 57 Fed. Cl. at 219, cannot

stand. Lt. Barnes’ claims contesting his dismissal from the

Navy, as based on deemed nonselection caused by a

procedurally deficient removal of his name from the

promotion list, remain for resolution.

By statute, removal of Barnes’ name from the promotion

list, unless corrected, becomes a “failure of selection”

when he was not selected for promotion by the next

Selection Board, resulting in two “failed” selections and

mandating his involuntari/y termination.

If an officer whose name has been “removed” from the

promotion list is not recommended for promotion by the next

selection board, that officer “shall be considered for all

purposes to have twice failed of selection for promotion.”

10 U.S.C. § 629(c)(2) (emphasis supplied).* Because his

2 The First Cause of Action asserts he was promoted to lieutenant

commander by operation of law when he was not notified of the delay of

his promotion prior to its effective date, in violation of 10 U.S.C. §

624(d)(3) and SECNAVINST (Secretary of Navy Instructions) 1420.1A

9 23c. The Second Cause of Action asserts that the delay of his

promotion expired on May 27, 1998, when all administrative and

disciplinary actions related to his nonjudicial punishment were

completed; accordingly, he was promoted as a matter of law on that date.

The Third Cause of Action asserts that he was not provided notice of new

grounds for delay of his promotion as required under 10 U.S.C. §

624(d)(3); accordingly, he was promoted as a matter of law.

> 10 U.S.C. § 629(c)(2) provides in relevant part:

If such an officer who is in a grade below ... [Navy] captain is not

recommended for promotion by the next selection board convened

for his grade and competitive category, or if his name is again

removed from the list of officers recommended for promotion, or

if the Senate again does not give its advice and consent to his

20a

name was removed from the promotion list, and he was not

recommended for promotion by the next promotion board,

the Navy proceeded on the basis that plaintiff was considered

twice failed of selection. However, as a matter of fact, Lt.

Barnes was selected for promotion by the 1998 Board, and

the selection received Senate confirmation. Only if Lt.

Bares’ name was then properly removed from the

promotion list, can the subsequent promotion board’s failure

to select him for promotion be deemed a “second”

nonselection. /d. It would turn the statute on its head if the

solution Congress prescribed for undue delay, ie.

“promotion,” cannot be implemented, as ruled in Dysart, but,

instead, a procedurally defective name removal could still be

utilized, not to promote, but to dismiss an officer.

While substantive discretionary determinations are

incapable of review, Barnes’ involuntary release may be

reviewed for procedural compliance with Navy regulations.

The government argues the Navy’s substantive decision to

remove Lt. Barnes from the approved and confirmed

promotion list, as well as any procedural deficiencies

attendant that decision, are not justiciable.

There is a plethora of authority mandating judicial

deference to military decisions. North Dakota v. United

States, 495 U.S. 423, 443, 110 S. Ct. 1986, 109 L. Ed. 2d

420 (1990) (“When the Court is confronted with questions

relating to ... military operations, we properly defer to the

judgment of those who must lead our Armed Forces in

battle.”); Gilligan v. Morgan, 413 U.S. 1, 10, 93 S. Ct. 2440,

37 L. Ed. 2d 407 (1973) (“{D]ecisions as to the composition,

training, equipping, and control of a military force are

promotion, he shall be considered for all purposes to have twice

failed of selection for promotion.

2la

essentially professional military judgments.”); Orloff v.

Willoughby, 345 U.S. 83, 93, 73 S. Ct. 534, 97 L. Ed. 842

(1953) (“{JJudges are not given the task of running the

Armmy.”); Voge v. United States, 844 F.2d 776, 779 (Fed.

Cir. 1988) (“Judicial deference must be ‘at its apogee’ in

matters pertaining to the military and national defense.’’).

[1] Specifically, the merits of promotion decisions are

nonjusticiable. Haselrig v. United States, 333 F.3d 1354,

1355, 1357 n. 3 (Fed. Cir. 2003) (reviewing Air Force

promotion board’s procedures and concluding they “reflect a

permissible construction of [the statute],” but noting that “the

merits of such a decision [not to promote] are not subject to

judicial review.”’); Richey v. United States, 322 F.3d 1317,

1328 (Fed. Cir. 2003) (“No court is in a position to resolve

and pass upon the highly complicated questions and

problems involved in the promotion procedure.”); Fluellen

v. United States, 225 F.3d 1298, 1304 (Fed. Cir. 2000)

(finding complaints about an Air Force Correction Board

review of prospects for promotion to be nonjusticiable).

Leadership issues are matters for the military, not the

judiciary. As the Federal Circuit observed in Porter v.

United States:

The promotion of an officer in the military service is a

highly specialized function involving military

requirements of the service and the qualifications of the

officer in comparison with his contemporaries, plus

expertise and judgment possessed only by the military.

No court is in a position to resolve and pass upon the

highly complicated questions and problems involved in

the promotion procedure, which includes, but is not

limited to, an analysis of the fitness reports and

personnel files and qualifications of all the officers

considered.

22a

163 F.3d 1304, 1316-17 (Fed. Cir. 1998) (quoting Brenner v.

United States, 202 Ct. Cl. 678, 692, 693-94, 1973 WL 21354

(1973)).

On the other hand, military decisions that do not comport

with statutory, regulatory or procedural strictures, including

those concerning promotions, are reviewable. “Though the

question of fitness to serve may be nonjusticiable in vanious ~-

contexts, we have consistently noted that a challenge to a

particular procedure followed by the military in rendering a

decision may present a justiciable issue.” Fisher v. United

States, 402 F.3d 1167, 1177 (Fed. Cir. 2005). See Wagner v.

United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004) (citing

Service v. Dulles, 354 U.S. 363, 388, 77 S. Ct. 1152, 1 L. Ed.

2d 1403(!957)); Carmichael v. United States, 298 F.3d

1367, 1373-74 (Fed. Cir. 2002) and Voge, 844 F.2d at 779

(“‘It has long been established that government officials

must follow their own regulations, even if they were not

compelled to have them at all.’”). See also Dysart, 369 F.3d

at 1315 (stating that “{i]n general, the subject of military

promotions is beyond the competence of courts to review,”

but “redress may be afforded for a promotion improperly

denied”). “Not every claim arising from a military decision

presents a nonjusticiable controversy.” Adkins v. United

States, 68 F.3d 1317, 1323 (Fed. Cir. 1995) (“{A]lthough 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.) (emphasis

in original). Groves v. United States, 47 F.3d 1140, 1144

(Fed. Cir. 1995) (“[Njo court is qualified to review the

substantive menits of a decision [committed to the discretion

o: the military], so long as the decision comports with any

procedural] standards mandated by statute or regulation.”);

Lindsay v. United States, 295 F.3d 1252, 1257-58 (Fed. Cir.

2002) (reversing the dismissal of a service member’s claim

23a

that his involuntary separation was due to an evaluation that

did not follow Air Force procedures, noting that “[a] claim of

procedural violations may present a justiciable controversy

because ‘the test or standards against which this court

measures the military’s action are inherent: they are the

applicable statutes and regulations”’) (quoting Adkins, 68

F.3d at 1323). “A court may appropriately decide whether

the military followed procedures because by their nature the

procedures limit the military’s discretion.” Murphy v.

United States, 993 F.2d 871, 873 (Fed. Cir. 1993). “[OJnce

the Secretary promulgated regulations and instructions and

made them the basis [for the officer’s involuntary release},

his action became subject to judicial review for compliance

with those regulations and instructions, even though he was

not required to issue them at all.” Sargisson v. United States,

913 F.2d 918, 921 (Fed. Cir. 1990). See also Roth v. United

States, 378 F.3d 1371, 1385 (Fed. Cir. 2004); Godwin v.

United States, 338 F.3d 1374, 1378 (Fed. Cir. 2003); Kreis

v. Sec'y of Air Force, 406 F.3d 684, 686 (D.C.Cir.2005);

Rolader v. United States, 42 Fed. Cl. 782 (1999).

The consequences of procedural violations may include

setting aside an involuntary discharge and ordering

reinstatement. In Porter v. United States, 163 F.3d 1304

(Fed. Cir. 1998), the officer complained about substantive

evaluation data provided to the promotion selection board.

The Federal Circuit sanctioned a remand to a Special

Selection Board to determine whether the promotion

decision would have been different with a corrected

evaluation. Like Barnes, Porter sought to invalidate at least

one of the passovers which led to his termination, a

consequence recognized by the Federal Circuit. ‘(The

voiding of previous passovers} would have removed the

legal basis for Porter’s 1985 discharge, resulting in a

constructive if not actual reinstatement to his pre-discharge

rank of first lieutenant and entitlement to back pay and

24a

related benefits.” 163 F.3d at 1305. Thus, procedural

infirmities in the removal of Lt. Barnes from the promotion

list could void his imputed nonselection and consequent

involuntary release.

The court’s threshold decision of justiciability is also

guided by the Federal Circuit’s recent analysis in Wagner v.

United States, 365 F.3d 1358 (Fed. Cir. 2004). There, unlike

many of the passover or termination cases which contested

the merits of a military decision, the Federal Circuit found

procedural error in the commencement of separation

proceedings. Army Regulation (“AR”) 600-8-24 required

the Secretary of the Army approve the commencement of

separation proceedings if the service member had eighteen or

more years of service as of the date of the proposed release.

When the proceedings began, Wagner had not reached that

threshold, but with subsequent update of his records, he did.

Separation proceedings continued however, without

knowledge of this update and Wagner was subsequently

involuntarily released. The Army then became aware that

with his updated records, he had tenure. The Secretary then

gave his retroactive approval. Wagner sought relief,

including reinstatement, from the Army Board for Correction

of Military Records. Relief was denied, the Board

concluding that any error was harmless. In reversing, the

Federal Circuit differentiated between cases where

procedural defects are reviewed for harmless error and those

where error is presumed. “Where reviewable standards or

factors constrain the exercise of discretion, harmless error

continues to be the appropriate test. Where the effect of an

error on the outcome of a proceeding is unquantifiable,

however, we will not speculate as to what the outcome might

have been had the error not occurred.” 365 F.3d at 1365

(citations omitted). “(Strict compliance with procedural

requirements is not required where the error is deemed

harmless.” 365 F.3d at 136i, citing Gratehouse v. United

25a

States, 206 Ct. Cl. 288, 512 F.2d 1104, 1108 (1975)

(“Exceptions are made to the rule of Service v. Dulles where

the procedural error is deemed harmless.”); Carmichael v.

United States, 298 F.3d 1367, 1375-76 (remanding for a

determination whether the Navy would have discharged the

soldier even if it had followed proper procedures); and

Sargisson v. United States, 913 F.2d 918, 922-23 (Fed. Cir.

1990) (finding harmless error in a procedural violation where

there was no risk of prejudice).

In sum, substantive errors are reviewable for harmless

error, that is whether “‘substantial evidence showed that it

was unlikely that the officer would have been promoted in

any event.”” 365 F.3d at 1362 (citing Sanders v. United

States, 219 Ct. Cl. 285, 594 F.2d 804, 818 (1979)) and

discussing Engels v. United States, 230 Ct. Cl. 465, 678 F.2d

173 (1982).*

In contrast to deficiencies in a service member’s record,

harmless error does not apply to “structural defects in the

constitution of the trial mechanism, which defy analysis by

harmless-error standards.... [They are} not quantifiable and

[are] therefore incapable of review.” 365 F.3d at 1364

(internal quotation marks omitted). Included in that category

are “procedural errors regarding the composition of military

selection boards.” Wagner, 365 F.3d at 1362, citing Doyle v.

United States, 220 Ct. Cl. 285, 599 F.2d 984 (1979) (review

* Wagner noted that harmless error analysis required in Sanders was

eliminated in Porter v. United States, 163 F.3d 1304, 1324 (Fed. Cir.

1998). Wagner, 365 F.3d at 1365 n. 2. Citing the 1980 enactment of the

Defense Officer Personnel Management Act (“DOPMA”) under which

an officer not selected for promotion may appear before a Special

Selection Board, Porter “dispense[d] with the old and mooted harmless

error inquiry.” Porter, 163 F.3d at 1325. Substantive record errors are

remanded to a Special Selection Board for consideration without voiding

prior passovers.

26a

board did not contain statutorily required number of Reserve

officers; review for harmless error did not apply;

reinstatement and back pay ordered), Evensen v. United

States, 228 Ct. Cl. 207, 654 F.2d 68, 72 (1981)

(reinstatement and back pay ordered without harmless error

review where, in violation of statutory proscription, review

board included members who had served on a prior board

that had not selected the plaintiff for promotion), and Porter

v. United States, 163 F.3d at 1317. The Wagner court

concluded that the “nature of the procedural error involved

required our conclusion that harmless error review is

inappropriate in this case, as the magnitude of the effect of

the error on the proceeding defies assessment by a reviewing

body.” 365 F.3d at 1364.

The determination that the harmless error screen did not

apply to the failure to get preapproval of separation

proceedings in Wagner applies with equal force to Lt.

Barnes’ allegations of improper delays in his promotion, the

subsequent removal of his name from the promotion list and

consequent imputed nonselection and _ involuntary

termination from the Navy.

+ The court’s analytical construct here is also consistent with

Finkelstein v. United States, 29 Fed. Cl. 611 (1993), where

plaintiff was involuntarily separated from the United States

Army following two promotion board passovers. The first

promotion board was convened before Finkelstein had

served a full year of continuous active duty, but less than one

year since her placement on the active duty list. Therefore,

her consideration for promotion was not within the temporal

windows set by Army regulations. Also, both promotion

boards were convened before she had completed the required

three years of service in that grade. The validity of the

discharge depended on the validity of the passovers.

27a

The principal issue addressed in this opinion is whether

plaintiff's ‘constructive service’ meets the time in

service requirements of [the AR and statute]. If it does

not meet [those requirements], her first failure of

selection was invalid. If it does not meet the actual

service in grade requirement of [the statute], both

passovers were invalid. In either event, whether based

on two illegal passovers or only one, her discharge

would be invalid.

29 Fed. Cl. at 616 (footnote omitted). The court concluded

that the selection boards nonselected her for promotion

before the required time in duty periods had elapsed;

accordingly, the ABCMR’s refusal to remove the

unauthorized passovers and reinstate her in the Army was

erroneous. Reinstatement was ordered. 29 Fed. Cl. at 625.

At oral argument in this case, the government asserted that

the procedures at issue here were not “regulations” because

they were not promulgated under the Administrative

Procedures Act, with notice and opportunity for comment.

While regulatory procedural restraints on the Navy’s

decisions may be subject to judicial scrutiny, the procedural

glitches in the removal of plaintiffs name from the

promotion list here, were embodied in a_ personnel

regulation. Accordingly, the government argues, no

substantive nghts were created. Hamlet v. United States, 63

F.3d 1097 (Fed. Cir. 1995), cited by the government for this

position, concluded that a personnel manual could confer

enforceable nghts pursuant to 28 U.S.C. § 1491(a), except

that the provision there contravened a federal statute.” 63

The Hamlet panel recognized that “several courts have held that an

agency manual or handbook can be a binding agency regulation.” 63 F.3d

at 1103-04 (citing Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L.

Ed. 2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 538-40, 79 S. Ct.

28a

F.3d at 1106. Here, the Navy regulation does not. And,

recently, Wagner clearly rejected the government’s proffered

defense. “(F]undamental errors are not limited to statutory

procedural error, but may also result from violations of

regulations and even internal operating procedures.”

Wagner, 365 F.3d at 1363.° Indeed, it was noncompliance

with a internal regulation that led to the Federal Circuit’s

conclusion Wagner “was not legally released from active

duty due to the Army’s failure to adhere to its involuntary

separation procedures as set out in AR 600-8-24.” 365 F.3d

at 1365.

The Navy did not comply with its procedures when it

removed Barnes’ name from the promotion list;

accordingly, the removal was not a “nonselection” for

promotion.

In his Fourth Cause of Action of his First Amended and

Supplemental Complaint, plaintiff asserts his “release from

active duty in 2001 was unlawful because it was the result of

the unlawful purported removal of his name from the active

968, 3 L. Ed. 2d 1012 (1959); and Thorpe v. Housing Authority of

Durham, 393 U.S. 268, 274-76, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969)).

* Defendant’s citation to Abruzzo v. United States, 206 Ct. Cl. 731,

513 F.2d 608 (1975), is also inapposite. In Abruzzo, the plaintiff alleged

the’ the Marine Corps’ failure to process a requested transfer to the Air

Forze voided his involuntary release from active duty after he was twice

monselected for promotion. Plaintiff argued that he had a right to remain

on active duty until that request was properly processed. The Court of

Claims adopted the conclusion of the trial court that any defects in the

handling of his transfer request did not insulate him from release from

active duty. “Plaintiff incorrectly equates his undoubted right to request

an interservice transfer to an obligation by the Marine Corps to retain

him on active duty until that request has been finally approved or

disapproved. In fact, no such obligation exists. Plaintiff's tour of duty

was not in any way related, or otherwise contingent on, the proper

processing of the transfer request.” 513 F.2d at 611.

29a

duty lieutenant commander promotion list.” While a

presidential refusal to appoint is not reviewable under

Dysari, and thus relief based upon an office not attained is

precluded, deficient removal from the promotion list is a

different matter. As plaintiff argues, “[t]he fact that that [sic]

an officer whose promotion is derailed by a refusal to

appoint cannot compel appointment does not ineluctably lead

to the conclusion that the courts are powerless to examine

the legality of the process leading up to that refusal-- here the

purported removal from a _ promotion list.” Pl.’s

Supplemental Br. at 3. Because his name was not properly

removed from the promotion list, the resulting lack of two

valid promotion passovers is the basis for plaintiff's

assertion that he is “deemed to have remained on active duty

until such time as he retires or is otherwise lawfully removed

from active duty.” /d. at 3.

Officers on a promotion list “shall be promoted to the next

higher grade when additional officers in that grade and

competitive category are needed.” 10 U.S.C. § 624(a)(2).

Appointment may be delayed under certain specified

circumstances, but no more than eighteen months from the

initial anticipated appointment date given.

An appointment of an officer may not be delayed under

this subsection for more than six months after the date

on which the officer would otherwise have been

appointed unless the Secretary concerned specifies a

further period of delay. An officer’s appointment may

not be delayed more than 90 days after final action has

been taken in any criminal case against such officer in

a Federal or State court, more than 90 days after final

action has been taken in any court-martial case against

such officer, or more than 18 months after the date on

which such officer would otherwise have been

appointed, whichever is later.

10 U.S.C. § 624(d)(4).

The President has delegated his right to remove a service

member from the promotion list to the Secretary of Defense.

The President has the authority to “remove the name of

any officer from a list of officers recommended for

promotion.” 10 U.S.C. § 629(a). He has delegated this

authority to the Secretary of Defense, but only for

grades below rear admiral (lower half) (in the Navy)

and brigadier general (in the Army, Air Force, and

Marine Corps). See Exec. Order No. 12,396, § 1(b).

Dysart, 369 F.3d at 1309 n. 5.

Under the Navy’s regulations, a name may be removed

from a promotion list by appropriate request to the Secretary

of the Navy only during a delay of that promotion:

e. Removal from the Promotion List. If during a

delay of promotion, it is determined that removal from

the promotion list is appropriate, removal action under

paragraph 17a may be initiated. Although removal

action is contemplated, requests for delay extensions as

provided in paragraph 23d shall be submitted to

SECNAV as necessary until the officer’s name is

removed from the promotion list.

SECNAVINST 1420.1A, 7 23¢e.

Those authonzed to remove are set forth in Paragraph 17a:

SECNAYV may remove the name of any officer from a

promotion list to any grade below 0-7. CHNAVPERS

or CMC, as appropriate, may submit requests for such

3la

action to SECNAV. In the case of officers on a

promotion list for the grades 0-7 and above,

CHNAVPERS or CMC, as appropriate, shall provide a

request for removal action to the President via

SECDEF to SECNAV for signature.

Accordingly, removal from an approved promotion list

must be during a period of delay. Promotion delays are

subject to statutory and regulatory constraints. A promotion

may be delayed if: (1) swom court-martial charges have

been received; (2) a disciplinary investigation is being

conducted; (3) a board of officers has been convened; (4)

state or federal criminal charges are pending; or (5) “[u]nder

regulations prescribed by the Secretary concerned, the

appointment of an officer under this section may also be

delayed in any case in which 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.” 10 U.S.C. § 624(d)(1) and

624(d)(2).

As delineated in Barnes v. United States, 57 Fed. Cl. 204

(2003), at the time Lt. Barnes’ name was removed from the

promotion list, there were no statutory or regulatory grounds

for delay--(1) there were no outstanding court-martial

charges; (2) there was no criminal investigation; (3) no

board of officers had convened; and (4) there were no

pending criminal charges. Also there had been no finding of

cause to believe he was mentally, physically, morally, or

professionally unqualified to perform the duties of a

lieutenant commander under regulations adopted by the

Navy. Even if any of the foregoing grounds could have

supported the March 17, 1998 delay memorandum, it expired

by its own terms--“until all related administrative or

disciplinary action is completed.” A.R. IV at 39. All

administrative and disciplinary proceedings against Lt.

32a

Barnes were completed on May 27, 1998. When Barnes was

notified on September 8, 1998 that his name might be

removed from the promotion list, and on April 26, 1999

when Secretary of the Navy Richard Danzig approved the

Chief of Naval Personnel’s recommendation to remove his

name from the list, any delay period had expired.

Furthermore, there was no valid basis for an extension of

the period of delay after March 17, 1998, and the extension

sought did not accord with procedural strictures. Barnes, 57

Fed. Cl. at 215-17. Accordingly, his removal was not

“during a delay” as required by Navy procedures. There

being no proper delay, the removal of Barnes’ name from the

promotion list on April 26, 1999 did not comport with the

Navy’s self-imposed limitations. SECNAVINST 1420.1A, 4

23e.

Plaintiff was not appointed to a position at the higher rank,

and, referencing SECNAVINST 1420.1A, his name was

removed from the promotion list on April 26, 1999 by

Richard Danzig, Secretary of the Navy. A.R. IV at 2. After

his name was removed from the 1998 promotion list, the

2001 Selection Board failed to select plaintiff for promotion.

The defective removal of plaintiff's name from the 1998

promotion list still resulted in the Navy taking action on the

basis that it was deemed a failure of selection, so that his

2001 failure of selection became his second. 10 U.S.C. §

629(c)(2).’ A second failure of selection caused plaintiff's

separation from active duty. 10 U.S.C. § 632(a).

" 10 U.S.C. § 629(c)(2) provides:

If such an officer (who is removed from a promotion list) who is

in a grade below the grade of colonel or, in the case of the Navy,

Captain is not recommended for promotion by the next selection

board convened for his grade and competitive category, or if his

name is again removed from the list of officers recommended for

promotion, or if the Senate again does not give its advice and

33a

Like the procedural failure to get preapproval in Wagner,

here action to remove Lt. Barnes’ name from the list of those

selected for promotion was not taken during an appropriate

period of delay. In Lt. Barnes’ situation, there is nothing to

re-review. “The nature of the procedural error involved

requires our conclusion that harmless error review is

inappropriate in this case, as the magnitude of the effect of

the error on the proceeding defies assessment by a reviewing

body.” Wagner, 365 F.3d at 1364. The bell has already

been wrung. As set forth in the prior opinion in this matter,

57 Fed. Cl. 204, the Navy did not follow its procedures.

Procedural defects in extending the delay that must exist to

permit the removal of Lt. Barnes from the promotion list,

like the procedural defects in Wagner, were systemic to

Barnes’ involuntary release.

The government argues any error was harmless. Plaintiff

was afforded the right to comment on the removal of his

name from the promotion list, the government notes, thus

removing possible harm. Again, Wagner’s discussion of

when harmless error is inapplicable mandates rejection of

this analysis. Moreover, prejudicial consequence is self-

evident. The procedurally deficient name removal resulted

in Lt. Barnes’ involuntary termination from the Navy.

Failure to comply with Navy regulations concerning name

removal from promotion lists served to deprive the removal

of its validity, and thus prevents the removal from serving as

a failure of selection, when in fact, Lt. Barnes had actually

been selected for promotion.’ Absent a valid “first” deemed

consent to his promotion, he shall be considered for all purposes to

have twice failed of selection for promotion.

* — This result is consistent with the intent of Congress. The statutory

remedy Congress provided in this situation is automatic

promotion/appointment to a position at the higher rank, not the

34a

nonselection, there was no “second” failure of selection and

the requirements of 10 U.S.C. § 632(a) have not been

satisfied.

The constructive service doctrine applies.

The Military Pay Act is money-mandating. Smith v. Sec’y

of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004) (citing

Dysart, 369 F.3d at 1315). Under the Military Pay Act, “a

member of a uniformed service who is on active duty” is

“entitled to the basic pay of the pay grade to which

assigned.” 37 U.S.C. § 204(a).

An officer’s night to pay “continues until the officer is

properly separated from the service.” Smith, 384 F.3d at

1295 (citing Sanders v. United States, 219 Ct. Cl. 285, 594

F.2d 804, 810 (1979)). See also Van Cleave v. United States,

402 F.3d 1341, 1343 (Fed. Cir. 2005); Martinez v. United

States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc)

(“(BJecause of the unlawful discharge, the plaintiff is entitled

to money in the form of the pay that the plaintiff would have

received but for the unlawful discharge.”); Tippett v. United

States, 185 F.3d 1250, 1255 (1999) (If a service member’s

“discharge was involuntary and improper, his statutory nght

to pay was not extinguished and thus serves as a basis for

Tucker Act jurisdiction.”); Holley v. United States, 124 F.3d

1462, 1465 (Fed. Cir. 1997) (“It is well established that 37

U.S.C. § 204 serves as the money-mandating statute

applicable to military personnel claiming damages and

conversion of an actual selection into a deemed passover. 10 U.S.C. §

624(a)(2). For constitutional reasons, the intended statutory remedy is

thwarted. Dysart, 369 F.3d at 1317 (citing Marbury v. Madison, 5 U.S. (1

Cranch) !37, 165-67 (1803)). However, to sanction the consequence the

government seeks here of a procedurally defective name removal

converting an actual promotion selection and confirmation into a deemed

passover, would be antithetical to the intent of Congress.

35a

ancillary relief for wrongful discharge.”). Constructive

service, a predicate for back pay, applies if a discharge or

separation is voided. Adkins v. United States, 68 F.3d 1317,

1326-27 (Fed. Cir. 1995). Members of the military “ ‘who

have been illegally or improperly separated from service are

deemed to have continued in active service until their legal

separation .... They are, therefore, entitled to back pay and

benefits for the intervening period, i.e., retroactive to their

original separation from service.’ “ Anderson v. United

States, 59 Fed. Cl. 451, 457-58 (2004) (quoting Christian v.

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

Accordingly, Barnes is entitled to reinstatement and

backpay.

The procedural infirmities in the delay of Lt. Barnes’

promotion, which resulted in his deemed nonselection and

consequent involuntary discharge, fit neatly within the

circumstances described in Smith v. Secretary of the Army.

[A]n action for money arises under the Military Pay

Act when the decision not to promote the service

member leads to the service member’s compelled

discharge. If, in such a case, the effect of an order

voiding the nonpromotion decision would be to give

the service member a right to continue in the service at

his previous rank, he would have a claim for the pay

lost because of his improper separation. In that

instance, the Military Pay Act would give the service

member a right to back pay, because the 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.’

384 F.3d at 1295 (citations omitted). The procedural

infirmities in the delay of Barnes’ otherwise valid selection

36a

for promotion, prefatory to his compelled discharge, have the

same result.

Lt. Barnes did not waive or relinquish his request for

reinstatement.

Post-Dysart oral argument injected two new elements into

this litigation. First, Lt. Barnes stated that he was ready,

willing, and able to return to active duty, thus resolving a

previous question in this regard.’ Secondly, the government

argued that Barnes recently resigned his commission, and

accordingly, his appointment was lost. His resignation was

for all purposes and waived the claims he seeks to assert

here.

Following his involuntary termination, Lt. Barnes accepted

a commission in the Independent Ready Reserves (“IRR”)

and received approximately $72,000 in separation pay.

Def.App. filed January 7, 2005 at B4. Shortly after June 30,

2003, the date of the decision in his favor in Barnes v.

United States, (and apparently in response to a request from

the IRR for updated information for mobilization purposes),

on July 15, 2003, plaintiff wrote to the Naval Reserve

Personnel Center: “[p]lease accept this as my resignation

' MR. FIDELL: Mr. Barnes is ready, willing and able to be restored

to active duty a? such tine as the Navy issues him orders.... He’s

ready, willing and able. If they issue him a set of orders as a

lieutenant, here we ae¢. Or a lieutenant commander.

Hearing Tr. 12-13.

Previously, plaintiff's willingness to return to active duty was

questionable. See Order of September 12, 2003. His previously stated

position concerning restoration to office may have effectively mooted

possible relief. However, if not correctly removed from active duty, Lt.

Bames may not be able to avoid reinstatement absent a resignation

accepted by the Navy as of an agreed date. Anderson v. United States, 59

Fed. Cl. 451, 454 n. 7, 457-58 (2004).

37a

from the IRR, thus ending my obligation to the U.S. Navy.”

Defendant’s Motion Seeking Leave to Supplement the

Record, Attach. B8. Accepting his resignation, the Navy’s

July 29, 2003 response referred to his discharge from the

U.S. Naval Reserve. /d. at B9. By its terms, the resignation

was only from the Reserves, the only military component of

which he was an officer. Lt. Barnes’ resignation from the

Reserves did not waive the claims he seeks to assert here.

Van Cleave v. United States, 402 F.3d 1341 (Fed. Cir.

2005).

The cases cited by defendant in this regard are

distinguishable. In Mimmack v. United States, 97 U.S. 426,

14 Ct. Cl. 578, 24 L. Ed. 1067 (1878) and Miller v. United

States, 19 Ct. Cl. 338 (1884), the President’s attempts to

rescind acceptance of officers’ voluntary resignations were

rebuffed. Lt. Barnes did not resign from active duty. Parrish

v. Brownlee, 335 F. Supp. 2d 661 (E.D.N.C.2004) a recent

stop loss case, also does not translate to this situation. In

Parrish, the court found “{uJjnder statutes and regulations

governing the status of commissioned officers, plaintiff, as

an officer in the IRR who did not resign his commission

upon completion of his MSO [Military Service Obligation],

remained under the jurisdiction of the Army and subject to

call to active duty.” 335 F. Supp. 2d at 669. The ability of

the Navy to recall Lt. Barnes is not an issue in this case.

Appropriate relief

For the purposes of the remedy, the situation involved in

this case is not akin to those involved in Roth v. United

States, 378 F.3d 1371 (Fed. Cir. 2004), Richey v. United

States, 322 F.3d 1317 (Fed. Cir. 2003), and Porter v. United

States, 163 F.3d 1304 (Fed. Cir. 1998). In those cases,

pursuant to 10 U.S.C. § 628, prior to its amendment in 2001,

107 Pub. L. No. 107, § 503(b), 115 Stat. 1012, 1084 (2001),

38a

asserted defects in promotion selection board actions were

held to require reconsideration by Special Selection Boards

(“SSB”), as opposed to a court order voiding the selection

board actions and reinstating the officers. In each of these

cases the officers had twice been passed over for promotion,

were discharged as a result, and then filed suit raising

asserted defects in the selection board proceedings involved.

In the instant case, the defect involved does not concern

the initial Selection Board action. There is no dispute that

the Board selected Lt. Barnes for promotion to lieutenant

commander. This selection was approved by the Secretary

of Defense, the nomination was forwarded to the Senate and

there confirmed. As detailed previously, in violation of

Navy regulation, Lt. Barnes’ name was then removed from

the promotion list. There exists no basis upon which an SSB

could reconsider the previous selection board action when no

defect in the Board’s action is involved. The defect in Lt.

Barnes’ case resides elsewhere. Absent the relevance of the

pre-2001 procedure prescribed by 10 U.S.C. § 628, and

absent the presence of harmless error, as discussed

previously, reinstatement is required. This is because the

invalid removal of Lt. Barnes’ name from the promotion list

precluded 10 U.S.C. § 629(c)(2) from operating to convert

his initial selection for promotion to lieutenant commander,

as confirmed by the Senate, into a passover. Lt. Barnes was

thus improperly discharged from the Navy on March 1, 2001

on the basis of only one nonselection instead of the two

nonselections required. 10 U.S.C. § 632(a). In this

circumstance, Lt. Barnes has not been effectively discharged

and is entitled to reinstatement and back-pay in his current

rank.

Final judgment in this matter will provide that following Lt. Bares’

reinstatement, the Secretary shall convene an SSB, pursuant to 10 U.S.C.

§ 628, to reconsider Lt. Barnes’ 2001 failure of selection. This step will

be required in that the 2001 Selection Board had before it Lt. Barnes’

39a

The Military Pay Act, 37 U.S.C. § 204 entitles Barnes to

“money in the form of the pay that the plaintiff would have

received but for the unlawful discharge.” Martinez v. United

States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc). See

also Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.

1997) (holding the Military Pay Act “serves as the money-

mandating statute applicable to military personnel claiming

damages and ancillary relief for wrongful discharge’’)

(emphasis supplied). Also, this court “may, as an incident of

and collateral to any . . . judgment, issue orders directing

restoration to office or position, placement in appropriate

duty or retirement status, and correction of applicable

records, and such orders may be issued to any appropriate

official of the United States.” 28 U.S.C. § 1491(a)(2)

(emphasis added).

CONCLUSION

Based upon the foregoing, it is ORDERED:

(1) That the conclusion that Lt. Barnes was promoted set

forth in the Opinion, reported at 57 Fed. Cl. 204 (2003), shall

be VACATED;

(2) Plaintiff's discharge from the Navy on March 1, 2001

is invalid such that Lt. Barnes shall be reinstated in the Navy

at his current rank with a judgment to be entered for

appropriate back pay less the adjustments required, such as

his civilian earnings for the period involved;

record showing his previous name removal from the earlier promotion

list, which record correction action to be ordered as part of the final

judgment in this matter will eliminate.

40a

(3) Final judgment, when entered in this matter, shall

also provide for appropriate correction of Lt. Barnes’ record

to eliminate references to the removal of his name from the

1998 promotion list in connection with appropriate

reconsideration of his promotion by an SSB for 2001; and

(4) Counsel shall now confer to reach agreement on the

appropriate amount of back pay and adjustments for the

entry of a final judgment in this maiter, and on or before

September 6, 2005S, shall file a report in this regard setting

forth the agreed amount(s), or, in the absence of an agreed

amouni(s), suggestions as to the further procedures required

in order to determine the amount(s) involved.

4la

APPENDIX C

United States Court of Federal Claims.

Danny T. BARNES, Plaintiff,

The UNITED STATES, Defendant.

No. 99-883C.

June 30, 2003.

Navy lieutenant whose name was removed from promotion

list for lieutenant commander brought suit against the United

States alleging his promotion to lieutenant commander

occurred by operation of law because of improper delay. On

cross-motions for judgment on the administrative record, the

Court of Federal Claims, Merow, Senior Judge, held that

plaintiff was promoted by operation of law when period of

delay specified in delay memorandum expired according to

its terms.

Plaintiff's motion granted; defendant’s motion denied.

Eugene R. Fidell, Washington, D.C. for the plaintiff.

Joseph Trautwein, Department of Justice, Washington,

D.C., with whom was Acting Assistant Attorney General

David W. Ogden; David Cohen, Director; and Bryant Snee,

Assistant Director; with whom was LCDR Jillian L.

42a

Morrison, United States Navy Office of the Judge Advocate

General, Washington, D.C.

OPINION

MEROW, Senior Judge.

Plaintiff, Navy Lieutenant Barnes, was nominated by the

President of the United States and confirmed by the Senate

for promotion to lieutenant commander. His promotion was

delayed and later his name was removed from the promotion

list. He alleges that the delay and removal of his name from

the promotion list was not in accordance with statutory and

regulatory procedure and, as a result, he is statutorily entitled

to monetary consequences attendant that promotion. The

government opposes. Both parties filed a motion for

judgment on the administrative record pursuant to Rule 56.1

of the Rules of the Court of Federal Claims. These motions

are now before the court.

Summary:

Lt. Barnes’ nomination for promotion to lieutenant

commander in the United States Navy was submitted to the

Senate by then President Bill Clinton on October 29, 1997,

and confirmed by the Senate on November 8, 1997. 143

Cong. Rec. $11390, $11391 (daily ed. Oct. 29, 1997), 143

Cong. Rec. §12214- 03 (daily ed. Nov. 8, 1997). The

projected effective date of his promotion was April 1, 1998.

By memorandum dated March 17, 1998, Lt. Barnes was

informed that his promotion was delayed pending

completion of administrative and disciplinary action related

to nonjudicial punishment he received for conduct

unbecoming an officer. Lt. Barnes did not receive this notice

until April 21, 1998. Ratification by the Secretary of the

Navy and an additional delay was requested on August 14,

43a

1998, and approved on August 24, 1998. On April 26, 1999,

Lt. Barnes’ name was removed from the promotion list. Lt.

Barnes alleges the delay and the removal of his name from

the promotion list did not comply with statutory and

regulatory provisions and the conditions placed on the delay

by the Navy. He also contends the subsequent decision of the

Navy Board for Correction of Military Records not to grant

him relief was arbitrary and capricious.

Statutory and regulatory framework for military

promotions

Evaluation and recommendation of eligible officers for

promotion is made by a selection board of commissioned

officers. 10 U.S.C. §§ 611-17, 622-23. The board’s

promotion list is forwarded through the Secretary of the

Navy for recommendation, to the Secretary of Defense for

approval, and then to the President of the United States. 10

U.S.C. §§ 618(b), 624(a)(1) and (c). The President, with the

advice and consent of the Senate, has the authority to

promote.

[The President] shall have Power, by and with the

Advice and Consent of the Senate... [to] nominate, and

by and with the Advice and Consent of the Senate,

shall appoint Ambassadors, other public Ministers and

Consuls, Judges of the supreme Court, and all other

Officers of the United States.

United States Constitution, art. II, § 2, cl. 2.

Statutory provision is similar. 10 U.S.C. § 624(c)

provides:

Appointments under this section shall be made by the

President, by and with the advice and consent of the

44a

Senate, except that appointments under this section in

the grade of first lieutenant or captain or lieutenant

(junior grade) or lieutenant shall be made by the

President alone.

Following Presidential approval of the selection board’s

report, the names of all officers approved for promotion are

listed in order of seniority. When additional officers in that

grade and competitive category are needed, the most senior

name is chosen and the promotion (or appointment) occurs.

10 U.S.C. § 624(a)(1). The promotion is effective on the

date of appointment. Secretary of the Navy Instruction

(“SECNAVINST”) 1420.1A 4 22; Def.App. p. 10.

A. Statutory promotion

Officers “shall” be promoted in list order except as

provided in 10 U.S.C. § 624(d) which provides for delays

under limited circumstances:

Except as provided in subsection (d), officers on a

promotion list for a competitive category shall be

promoted to the next highcr grade when additional

officers in that grade and competitive category are

needed. Promotions shall be made in the order in

which the names of officers appear on the promotion

list and after officers previously selected for promotion

in that competitive category have been promoted.

10 U.S.C. § 624(a)(2)(emphasis added).

B. Promotion delay

The promotion “shall” occur unless: (1) there are court-

martial charges pending against the officer, (2) an

investigation is being conducted to determine if any

45a

disciplinary action should be taken against the officer; (3) a

Board of Inquiry has been convened to review the officer’s

records; or (4) state or federal criminal charges are pending

against the officer. The officer “shall” be promoted in list

order upon favorable conclusion of any of these proceedings’

unless there is cause to believe that the officer is unqualified

for the promotion under subsection (d)(2), the fifth and last

statutory basis for delay. 10 U.S.C. § 624(a)(2) provides:

Under regulations prescribed by the Secretary

concerned, the appointment of an officer under this

section may be delayed if--

(A) sworm charges against the officer have been

received by an officer exercising general court-martial

jurisdiction over the officer and such charges have not

been disposed of;

' Subsection (d)(1) is clear that upon favorable conclusion of any of

these proceedings, the officer’s promotion “shall” occur, retroactively if

necessary:

If no disciplinary action is taken against the officer, if the charges

against the officer are withdrawn or dismissed, if the officer is not

ordered removed from active duty by the Secretary concerned

under chapter 60 of this title, or if the officer is acquitted of the

charges brought against him, as the case may be, then unless

action to delay an appointment has also been taken under

subsection (d)(2) the officer shall be retained on the promotion list

and shall, upon promotion to the next higher grade, have the same

date of rank, the same effective date for the pay and allowances of

the grade to which promoted, and the same position on the active-

duty list as he would have had if no delay had intervened, unless

the Secretary concerned determines that the officer was

unqualified for promotion for any part of the delay. If the

Secretary makes such a determination, the Secretary may adjust

such date of rank, effective date of pay and allowances, and

posit on the active-duty list as the Secretary considers

appropiate ander the circumstances.

46a

(B) an investigation is being conducted to determine

whether disciplinary action of any kind should be

brought against the officer;

chapter 60 of this title to review the record of the

officer; or

(D) a criminal proceeding in a Federal or State court

is pending against the officer.

The fifth grounds, 10 U.S.C. § 624(d)(2), provides for

delay if there is cause to believe that the officer is

unqualified for the promotion. If the officer is later found to

be qualified, the promotion “shall” occur, again retroactively

if necessary.

Under regulations prescribed by the Secretary

concerned, the appointment of an officer under this

section may also be delayed in any case in which 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. If the Secretary concerned

later determines that the officer is qualified for

promotion to such grade, the officer shall, upon such

promotion, have the same date of rank, the same

effective date for pay and allowances in the higher

grade to which appointed, and the same position on the

active-duty list as he would have had if no delay had

intervened, unless the Secretary concerned determines

that the officer was unqualified for promotion for any

part of the delay. If the Secretary makes such a

determination, the Secretary may adjust such date of

rank, effective date of pay and allowances, and position

on the active-duty list as the Secretary considers

appropriate under the circumstances.

47a

SECNAVINST 1420.1A, J 23, which echoes the statutory

requirements, contains the Navy’s policies and procedures

governing promotion delays. Notably a delay in

appointment must be ratified by the Secretary of the Navy

“as soon as practicable.”

a. Criteria for Promotion Delay.

CHNAVPERS * or CMC®, as appropriate, or a

member’s commanding officer, may delay the

appointment of an officer selected for promotion. If

the appointment is delayed, the delaying officer shall,

as soon as practicable, forward the information

required by paragraph 23b to SECNAV “ for

ratification. Promotion may be delayed under this

instruction if:

(1) Sworn charges against the officer have been

received by an officer exercising general court-martial

jurisdiction over the officer and such charges have not

been disposed of.

(2) An investigation is being conducted to determine

whether disciplinary action of any kind should be

brought against the officer.

(3) Processing for separation for cause has been

initiated under reference (h).°

(4) A criminal proceeding in a Federal or state court

is pending against the officer.

(5) There is cause to believe that the officer is

mentally, physically, morally, or professionally

unqualified.

? Chief of Naval Personnel.

Commandant of the Marine Corps.

Secretary of the Navy.

* SECNAVINST 1920.6A.

48a

b. Command Requests for Delay.

(1) Commanding officers who consider delay of an

officer’s promotion warranted and delay an officer’s

promotion, shal] submit justification for the delay to

SECNAV via, CHNAVPERS (MNPC-82) (copy to

COMNAVMILPERSCOM ° (NMPC-22)), or CMC

(MMPR-1) as appropriate, within 10 days of

knowledge of the circumstances warranting the delay,

or as soon thereafter as practicable.

(2) Each justification for delay to SECNAV must

include the following documents:

(a) A copy of the notification to the officer and;

(b) A statement by the officer. If the officer declines to

make a statement, the officer concerned shall submit a

signed statement to that effect;

commanding officer based on his or her knowledge of

the officer involved; and

(d) A recommendation by CHNAVPERS or DC/S (M

& RA),’ as appropriate.

10 U.S.C. § 624(d)(3) sets additional conditions and limits

on promotion delays. Notice must be given to the officer

before the effective date of the promotion unless it is

“impractical” to do so, in which instance notice must be

given as soon as practical:

(3) The 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

° Commander, Naval Military Personne! Command.

Deputy Chief of Staff (Manpower and Reserve Affairs).

49a

written notice shall be given as soon as practicable. An

officer whose promotion has been delayed under this

subsection shall be afforded an opportunity to make a

written statement to the Secretary concerned in

response to the action taken. Any such statement shal!

be given careful consideration by the Secretary.

Delay may not be longer than six months unless the

Secretary specifies a further period of delay. In no instance

may delay be more than eighteen months from the original

effective date of promotion--here April 1, 1998. 10 U.S.C. §

624(d)(4):

An appointment of an officer may not be delayed under

this subsection for more than six months after the date

on which the officer would otherwise have been

appointed unless the Secretary concerned specifies a

further period of delay. An officer’s appointment may

not be delayed more than 90 days after final action has

been taken in any criminal case against such officer in

a Federal or State court, more than 90 days after final

action has been taken in any court-martial case against

such officer, or more than 18 months after the date on

which such officer would otherwise have been

appointed, whichever is later.

C. Removal from the promotion list

The President may remove an officer’s name from the

promotion list. 10 U.S.C. § 629(a):

(a) The President may remove the name of any officer

from a list of officers recommended for promotion by a

selection board convened under this chapter.

50a

Under Navy regulations, an officer may be removed from a

promotion list only during a period of delay:

e. Removal from the Promotion List. If during a

delay of promotion, it is determined that removal from

the promotion list is appropriate, removal action under

paragraph 17a° may be initiated. Although removal

action is contemplated, requests for delay extensions as

provided in paragraph 23d shall be submitted to

SECNAYV as necessary until the officer’s name is

removed from the promotion list.

SECNAVINST 1420.1A, 4 23e.

Factual summary

Nonjudicial punishment proceedings against Lt. Barnes

were held at Misawa, Japan on November 24, 1997. Lt.

Bames was found guilty of five specifications of the

Uniform Code of Military Justice and seven days of

restriction were imposed. A.R. II, pp. 19-20. The charges

concemed attempts to arrange off-duty liaisons with enlisted

women, two of whom were his subordinates. A.R. II, p. 16-

17. He did not file an appeal. On December 12, 1997, his

commanding officer reported his nonjudicial punishment and

recommended that while he should remain on the promotion

list, Lt. Barnes should be the last on the list to be promoted,

but he should not be required to show cause why he should

be retained in the Navy. A.R. II, p. 15. |

* Paragraph 17a provides: a. SECNAV may remove the name of any

officer from a promotion list to any grade below 0-7. CHNAVPERS or

CMC, as appropriate, may submit requests for such action to SECNAV.

In the case of officers on a promotion list for the grades 0-7 and above,

CHNAVPERS or CMC, as appropriate, shall provide a request for

removal action to the President via SECDEF to SECNAV for signature.

5la

A March 17, 1998 memorandum to Lt. Barnes stated his

promotion was delayed. The memorandum cited his

nonjudicial punishment and stated that he may not be

qualified for promotion. The delay was until “all related

administrative or disciplinary action is completed.” A.R. II,

p. 39. Lt. Barnes did not receive this memorandum until

April 21, 1998. Starting on April 1, 1998, his projected

promotion date, he received pay at the higher rank for a year.

On March 19, 1998, a Show Cause Authority determined

that Lt. Barnes should show cause why he should allowed to

remain in the Navy. Citing the prior imposition of non-

judicial punishment, the Board of Inquiry on May 27, 1998

determined he had engaged in conduct unbecoming an

officer, failed to demonstrate acceptable qualities of

leadership, and failed to conform to prescribed standards of

military deportment. By a vote of 2 to 1, the Board

recommended that Lt. Barnes be permitted to remain in the

Navy. A.R. V, pp. 1-51.

By an August 14, 1998 request, approved on August 24,

1998, the March 17, 1998 delay of Lt. Barnes’ promotion

was ratified and extended by the Assistant Secretary of the

Navy. A.R. IV, p. 12. On April 26, 1999, his name was

removed from the promotion list. A.R. IV, p. 2. On March 1,

2001, he was released from active duty after twice being

passed-over for promotion.

On May 16, 2000, Lt. Barnes submitted an Application for

Correction of Naval Records which asserted in part that his

promotion occurred as a matter of law because of improper

delay. S.A.R., Tabs 1 & 2. On January 11, 2001, the Board

for Correction of Navy Records determined Lt. Barnes had

not been promoted as a matter of law. S.A.R., Tab 6. On

December 19, 2001, upon consideration of equitable factors,

52a

the Board again rejected his application. 2nd S.A.R., pp. 2-

Legal principles

As “decisions as to the composition, training, equipping,

and control of a military force are essentially professional

military judgments,” Gilligan v. Morgan, 413 US. 1, 10, 93

S. Ct. 2440, 2446, 37 L. Ed. 2d 407 (1973), the substance of

decisions such as whether or not a particular officer should

be promoted, “is frequently beyond the institutional

competence of courts to review.” Lindsay v. United States,

295 F.3d 1252, 1257 (Fed. Cir. 2002), citing Voge v. United

States, 844 F.2d 776, 780 (Fed. Cir. 1988). In Voge the court

stressed that “[j]udicial deference must be ‘at its apogee’ in

matters pertaining to the military and national defense.” 844

F.2d at 779, citing Rostker v. Goldberg, 453 U.S. 57, 70, 101

S. Ct. 2646, 2654-55, 69 L. Ed. 2d 478 (1981). See also

Adkins v. United States, 68 F.3d 1317, 1322 (Fed. Cir. 1995)

(“the merits of a service secretary’s decision regarding

military affairs are unquestionably beyond the competence of

the judiciary to review.”’).

As the Federal Circuit recently observed, courts are

reluctant to intervene in the merits of promotion decisions

because of:

the court’s incurable lack »f knowledge of the total

grist which the boards sift, [and] also ... a preference

not to meddle with the internal workings of the

military. The promotion of an officer in the military

service is a highly specialized function involving

military requirements of the service and_ the

qualifications of the officer in comparison with his

contemporaries, plus expertise and judgment possessed

only by the military. No court is in a position to

53a

resolve and pass upon the highly complicated questions

and problems involved in the promotion procedure.

Richey v. United States, 322 F.3d 1317, 1327 (Fed. Cir.

2003), citing Porter v. United States, 163 F.3d 1304, 1316-

17 (Fed. Cir. 1998).

However, “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.” Adkins, 68 F.3d at 1323 (emphasis

in original). “A court may appropriately decide whether the

military followed procedures because by their nature the

procedures limit the military’s discretion.” Murphy v.

United States, 993 F.2d 871, 873 (Fed. Cir. 1993).

In Adkins v. United States, 68 F.3d 1317 (Fed. Cir. 1995),

the officer challenged the decision of the Secretary of the

Army rejecting the recommendation of the Army Board for

Correction of Military Records that certain material be

removed from the officer’s personnel files. The officer

claimed the Secretary improperly considered matters outside

the administrative record to which he was denied access and

the right to refute in violation of regulations which “assured

[the service member] access to all official records that are

necessary to an adequate presentation of his/her case.”

Adkins at 1325. The Federal Circuit held that Adkins stated

a justiciable claim because military decisions are subject to

judicial review for compliance with statutes and regulations.

In cases in which procedural violations are alleged, the

test or standards against which this court measures the

military’s conduct are inherent: they are the applicable

statutes and regulations. In such instances, this court

does not improperly exercise any discretion reserved

54a

for the military; ‘it merely determines whether the

procedures were followed by applying the facts to the

statutory or regulatory standard.’

Adkins at 1323, citing Murphy v. United States, supra at 873.

The question is whether there are procedural “tests and

standards which [courts} can soundly administer within their

special field of competence.” Voge v. United States, 844

F.2d 776, 780 (Fed. Cir. 1988). “ ‘Adjudication of plaintiff's

claims reauires the district céurt to determine only whether

the Secretary’s decision making process was deficient, not

whether his decision was correct.’” Adkins, 68 F.3d at 1323,

citing Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1011

n. 16 (8th Cir.1989). The military is bound by statutes as

well as its own regulations. As the Federal Circuit recently

articulated:

The military no less than any other organ of the

government is bound by statute, and even when granted

unfettered discretion by Congress the military must

abide by its own procedural regulations should it

choose to promulgate them. See Murphy v. United

States, 993 F.2d 871, 873 (Fed. Cir. 1993). A claim of

procedural violations may present a justiciable

controversy because ‘the test or standards against

which this court measures the military’s actions are

inherent, they are the applicable statutes and

regulations,’ Adkins, 68 F.3d at 1323.

Lindsay v. United States, 295 F.3d 1252, 1257-58 (Fed. Cir.

2002).

Accordingly, the court will apply statutes and regulations

to the administrative record. Failure to adhere to those

standards is remedied by monetary relief. “If the Court of

55a

Federal Claims finds that the Army improperly exercised its

authority to retire Adkins, he will be entitled to back pay

calculated in accordance with law and reinstatement to the

rank of lieutenant colonel from the date of his retirement.”

Adkins, 68 F.3d at 1327.

While both sides rely on numerous cases, Rolader v.

United States, 42 Fed. Cl. 782 (1999) is the closest to the

case sub judice, at least according to plaintiff. In Rolader,

the court concluded the Air Force did not follow its

procedures in initiating the removal of plaintiff's name from

the promotion list. Accordingly, because the officer was not

removed from the promotion list on the date his promotion

delay expired, the court held that Lt. Col. Rolader was

promoted by operation of law:

There being insufficient proof that the Air Force

complied with its own regulations in initiating a

recommendation of removal, we hold that the delay to

plaintiffs promotion expired on June 30, 1993.

Because plaintiff's name was not removed from the

promotions list before that date, he was promoted by

operation of law.

42 Fed. Cl. at 787 (emphasis supplied).? See also Voge v.

United States, 844 F.2d 776, 782 (Fed. Cir. 1988) (“absent a

statute or regulation entitling a service member to promotion

as a matter of law, the Claims Court [now the Court of

Claims} has no authority to entertain this claim [for

promotion as a matter of law].”).

® Rolader’s motion for summary judgment was granted. Following a

stipulation, judgment was entered that promoted plaintiff, corrected his

military records, awarded him back pay and allowances, and declared

that he would receive retired pay commensurate with the grade of colonel

beginning March 1, 1999.

56a

Summary of procedural errors alleged

Lt. Barnes alleges there was no statutory basis for the

March 17, 1998 delay memorandum and that, alternatively,

the period of delay specified therein (until the completion of

all related administrative and disciplinary proceedings)

expired. He also argues he was not given notification of a

delay in his promotion prior to April 1, 1998, the effective

date of his promotion. Procedural errors are also alleged in

the August 24, 1998 extension of the initial promotion delay

and in the removal of his name from the promotion list

which he asserts was after the expiration of the delay.

Validity and expiration of term of promotion delay

Lt. Barnes’ promotion was confirmed by the Senate on

November 8, 1997, with a projected effective date of April 1,

1998. A memorandum to Lt. Barnes from the Chief of Naval

Personnel dated March 17, 1998 (15 days prior to the date on

which Lt. Barnes was projected to be promoted) cited his

non-judicial punishment for conduct unbecoming an officer,

and informed him that his April 1, 1998 promotion to

lieutenant commander was delayed “until all related

administrative or disciplinary action is completed.” A.R. IV,

p. 39. The memorandum also stated he may not be qualified

for promotion.

Subj: DELAY OF YOUR PERMANENT

PROMOTION TO LIEUTENANT COMMANDER

Ref: (a) CO NSGA Misawa ltr 1611 Ser NOO/01647

of 19 Dec 97 w/ends

(b) SECNAVINST 1420.1A

1. Reference (a) reported you received nonjudicial

punishment on 24 November 1997 for violation of

UCMS, Article 133, conduct unbecoming an officer.

57a

Per reference (b), you may not be qualified for

permanent promotion.

2. Accordingly, you are hereby notified the Chief of

Naval Personnel has approved the delay of your 1 April

98 permanent promotion to lieutenant commander until

all related administrative or disciplinary action is

completed.

3. You are hereby afforded the opportunity to submit a

Statement concerning this action prior to ratification by

the Secretary of the Navy. Please forward your

statement, or written declination to make a statement,

via your chain of command, to the Chief of Naval

Personnel (PERS 834/82) within fifteen days of receipt

of this letter.

The memorandum’s header refers to a December 19, 1997

memo from Lt. Barnes’ Commanding Officer in Misawa,

Japan reporting his November 24, 1997 nonjudicial

punishment. In that report his commanding officer

recommended Lt. Barnes’ promotion not be withheld and

that he not be required to show cause for his retention in the

Navy. '° The nonjudicial proceeding was completed on

November 24, 1997, prior to the March 17, 1998

memorandum. Accordingly, as of March 17, 1998, there

'0 The Commanding Officer wrote:

LT Barnes is on the current selection list for promotion to

Lieutenant Commander and is expected to be promoted in

approximately June 1998. However, the conduct that resulted in

this mast is not the conduct expected of a Lieutenant Commander.

Accordingly, per reference (a), I most strongly recommend that his

promotion be delayed such that he will be the last to be promoted

in his year group. I believe that LT Barnes has the potential to be

a strong, positive asset for the Navy. Therefore, I do not

recommend that his promotion be withheld, nor do I recommend

that he be required to show cause for retention.

A.R. Il, p. iS.

58a

were no “sworn charges against the officer...received by an

officer exercising general court-martial jurisdiction over the

officer ...[which] have not been disposed of” under 10 U.S.C.

§ 624(d)(1)(A)--the first statutory basis for a delay of

promotion.

A Show Cause Authority reviewed Lt. Barnes’ record and

on March 19, 1998, two days after the March 17, 1998

memorandum, determined he should show cause before a

Board of Inquiry (“BOT”) why he should be retained in the

Navy. A.R. IV, pp. 34-35. This notice was emailed to Lt.

Barnes on the SS JOHN MCCAIN in the Arabian Gulf. On

May 27, 1998, a BOI convened pursuant to SECNAVINST

1920.6A, determined Lt. Barnes had engaged in misconduct,

but by a vote of 2 to 1 recommended he be allowed to remain

in the Navy. A.R. V, pp. 1-51. The BOI, appointed on May

26, 1998 and meeting on May 27, 1998, did not satisfy the

second of the five statutory bases for a promotion delay, the

convening of a board of officers to review his record. 10

U.S.C. § 624(d)(1)(C). Even if the March 19, 1998 cause

determination could be considered a convening of the board,

it was two days after the delay memorandum and could not

have satisfied that statutory grounds. See Stringer v. United

States, 117 Ct. Cl. 30, 90 F. Supp. 375, 379 (1950)

(government required to strictly comply with statutory time

requirements). Furthermore, the BOI’s decision on May 27,

1998 to retain Lt. Barnes was final, thus terminating that

administrative procedure.'' Accordingly, even if the Board

proceedings were pending at the time of the March 17, 1998

delay memorandum, those proceedings were completed on

May 27, 1998, thus terminating the Navy’s self-imposed

conditions on the delay.

'' 10 U.S.C. § 1182(d)(1) provides: “If a board of inquiry determines

that the officer has established that he should be retained on active duty,

the officer’s case is closed.”

59a

The government does not point to evidence in the record of

an ongoing investigation to determine whether any

disciplinary action should be taken against Lt. Barnes, or any

pending criminal charges against him, two of the other five

types of permissible grounds to delay a promotion under 10

U.S.C. § 624(d).

That leaves the fifth and final grounds statutory grounds

for delaying a promotion--cause to believe the officer is

unqualified to perform the duties of the higher rank. 10

U.S.C. § 624(d)(2). The government asserts that the

statement in the March 17, 1998 memorandum that Lt.

Barnes may not be qualified for promotion satisfies the

statute. Secondly, the government argues that questions

about his qualification for promotion were outstanding--thus

extending his promotion delay until such a determination

was made.

To reiterate, subsection 624(d)(2) provides:

[uJnder regulations prescribed by the Secretary

concerned, the appointment of an officer under this

section may also be delayed in any case in which 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.

SECNAVINST 1420.1A, 9 23(a) echoes the statutory

language but does not add any procedural guidelines:

“[p]romotion may be delayed under this instruction if:...(5)

There is cause to believe that the officer is mentally,

physically, morally, or professionally unqualified.” The

body of the March 17, 1998 memorandum to Lt. Barnes

states that “[p]er reference (b)[the Navy regulation], you may

60a

not be qualified for permanent promotion.” While posing a

question, this query does not answer that question and is not

a finding of cause to believe Lt. Barnes was not mentally,

physically, morally, or professionally qualified to perform

the duties of the higher rank, neither does the memorandum

refer to any cause finding. A question about Lt. Barnes’

qualification for permanent promotion is not an

administrative or disciplinary action nor a finding of cause to

believe he was not qualified.

In addition to the December 19, 1997 report of Lt. Barnes’

nonjudicial punishment, the header of the March 17, 1998

memorandum references only one other item, Navy

regulation--SECNAVINST 1420.1A--and the government

does not contend that Naval regulation contains any

procedure for making such a cause determination. Rather,

the goverriment takes the position that memorandum’s

equivocation about Lt. Barnes’ qualification for permanent

promotion, and the several other record statements about his

qualification for promotion, evince a separate administrative

consequence of his misconduct that was outstanding prior to

the March 17, 1998 delay memorandum, distinct from the

nonjudicial punishment and Board of Inquiry proceedings.

“The decision to promote an officer after disciplinary action

is a natural administrative consequence of officer misconduct

encompassed within the meaning of ‘all administrative and

disciplinary matters.”’ Gov’t Opposition at p. 27. The

government however does not point to any record of such an

administrative procedure, or a finding of cause to believe he

was not qualified for his promotion, the latter being

necessary to validate the March 17, 1998 delay and the

former necessary to extend any such delay until completion

of such a proceeding.

Clearly the Navy was not unfamiliar with a cause

determination. Two days after the March 17, 1998 delay

6la

memorandum, the Show Cause Authority found cause to

question Lt. Barnes’ retention in the Navy. Lt. Barnes was

required and did show cause why he should be retained in

the Navy before a Board of Inquiry. “Cause” to believe he

was mentally, physically, morally, or professionally

unqualified to perform the duties of the higher rank is a

different issue. Citing MILPERSMAN 3410100.2.b.(2), the

government argues that an administrative decision had to be

made about whether or not Lt. Barnes’ misconduct warranted

a promotion delay or removal from the promotion list.'? The

administrative record cited by the government is as follows.

On December 19, 1997, pursuant to requirements of the

Military Personnel Manual (“MILPERSMAN”) 3410100,”

Lt. Barnes’ Commanding Officer at Misawa, Japan sent a

report of his non-judicial punishment to the Bureau of Naval

Personnel as required by MILPERSMAN 1611-010(3). The

letter report included his Commanding Offficer’s

recommendation that he should be the last in his group to be

promoted, but that his promotion not be withheld and he not

be required to show cause why he should be retained. Lt.

Barnes responded in a “First Endorsement” that emphasized

his otherwise stellar Naval career and urged that his

promotion not be delayed as recommended by his

Commanding Officer. A.R. II, pp. 13-14. A Second

'2 Although the government posits this argument in support of its

assertion that there was an administrative proceeding pending as of

August 24, 1998 which would validate the extension of the March 17,

1998 delay, the court also determines whether it supplies the necessary

Statutory grounds for the March 17, 1998 delay.

' MILPERSMAN 3410100 is now located at section 1611-010. The

parties did not provide the court with the prior version. The court

presumes there is no substantive difference between the two. Here, the

report of non-judicial punishment was forwarded through the chain of

command to the Chief of Naval Personne] who responded with the

administrative show cause proceedings concerning Lt. Barnes’ retention

in the Navy, not a show cause proceeding as to his qualification for

promotion.

62a

Endorsement dated January 6, 1998 from his Commanding

Officer forwarded the package. On February 4, 1998, the

Commander, Naval Security Group Command, in Fort

Meade, Maryland recommended to the Chief of Naval

Personnel that Lt. Barnes be removed from the promotion

list and required to show cause for retention in the Navy (the

Third Endorsement). A.R. II, p. 11. This recommendation

does not equate to a determination that there was cause to

believe that Lt. Barnes was mentally, physically, morally, or

professionally unqualified to perform the duties of the rank

of Commander. Subsequently, on March 19, 1998, the Chief

of Naval Personnel, in response to the December 19, 1997

letter, informed Lt. Barnes that a Show Cause Authority

reviewed his case and determined there was “sufficient

evidence of record to require you to show cause for retention

in the Naval Service.” A.R. II, pp. 5-6. While there was a

show cause finding for retention, there was no show cause

finding for fitness for promotion.

The government also cites to a February 19, 1998

memorandum from Lt. Commander R.C. Jensen, Acting

Director of the Officer Performance Division to Commander

Ann C. Stewart, the Director of Officer Promotions objecting

to Lt. Barnes’ promotion and noting in conclusory fashion

that all administrative action in his case was not completed.

A.R. VIII, p. 4. A superior officer’s recommendation that Lt.

Barnes be removed from the promotion list, and a conclusory

statement by another superior officer that administrative

action had not been completed as of February 19, 1998, do

not satisfy the requirements of subsection (d)(2). The

record’s question about fitness for promotion cannot be

elevated to statutory “cause.” Assuming the March 17, 1998

query about his qualification could be construed as a finding

of cause to believe he was not qualified for promotion, one

of the five statutory bases for delay of promotion, the Navy

expressly conditioned the term of that delay “until all related

63a

administrative or disciplinary action is completed.” There

was no administrative or disciplinary action other than the

non-judicial punishment which was completed before March

17, 1998, and the subsequent Board of Inquiry Proceeding

which was completed on May 27, 1998, thus any period of

delay terminated.

Moreover, under the government’s reasoning, “‘cause” here

was an extension of the nonjudicial proceedings and the

Board of Inquiry. The court disagrees. “Cause” under

subsection (d)(2) is a separate and additional statutory

grounds for the delay. “[T]he appointment of an officer may

also be delayed” if there is cause to believe that officer is not

qualified for the promotion. The word “also” means

something. Recharacterization of the other four statutory

grounds for delay does not create a new statutory basis, at

least without a separate administrative or disciplinary

proceeding. The government’s citations to the

administrative record do not support its conclusion that any

administrative or disciplinary action to determine such

“cause” was either initiated, such as to validate the March

17, 1998 memorandum, or existed yet was uncompleted, to

extend the promotion delay under the Navy’s self-imposed

terms. RCFC 56.1.

The court concludes that (1) there was no finding of cause

to believe that Lt. Bames was mentally, physically, morally,

or professionally unqualified to perform the duties of the

higher rank which could justify the delay in the first

instance; and alternatively, (2) there was no ongoing related

administrative or disciplinary proceedings concerning cause,

the temporal parameters of the delay of Lt. Barnes

promotion.'* The court finds that none of the five conditions

'* Because of other statutory and regulatory errors, the court does not

address whether subsection 624(d)(2) or due process would require the

existence of regulations governing determination of cause to believe the

64a

for promotion delay in 10 U.S.C. § 624(d)(1) or 624(d)(2)

existed as of March 17, 1998. As a result, subsection

624(a)(2) mandates that the officer “shall” be promoted. See

generally Scarborough v. Principi, 319 F.3d 1346, 1349

(Fed. Cir. 2003) (applying as mandatory the “shall”

requirement that attorney fee applications under the Equal

Access of Justice Act be submitted within thirty days). See

also Allegheny Ludlum Corp. v. United States, 287 F.3d

1365, 1376 (Fed. Cir. 2002) (applying as mandatory

statutory “shall”). The court also finds that all administrative

or disciplinary action related to Lt. Barnes’ nonjudicial

punishment were completed on May 27, 1998, thus

terminating the period of any promotion delay under the

Navy’s terms. The provisions of the statute and the terms of

the Navy’s delay having expired, Lt. Bares was promoted

by operation of law under subsection 624(a)(2).

The court is not impinging on military discretion on the

merits of the decision to remove Lt. Barnes’ name from the

Senate-approved promotion list. Rather, the court is

following statutory mandates, that like regulations, limit the

government’s discretion. The court is not ordering the

promotion, but recognizing that the promotion occurred.

Law v. United States, 11 F.3d 1061, 1065 (Fed. Cir. 1993).

Ratification by Secretary of Navy

Although not raised by plaintiff, the March 17, 1998

purported delay of Lt. Barnes’ promotion was not ratified

until August 24, 1998 by Berard Rostker, Assistant

Secretary of the Navy (Manpower and Reserve Affairs).

officer is not mentally, physically, morally or professionally qualified for

the promotion as a condition precedent to a delay of promotion under

subsection 624(d)(2).

65a

Navy regulation requires a delay of promotion be ratified by

the Secretary of the Navy “as soon as practicable.”

23. Delay of Promotion

a. Criteria for Promotion Delay.

CHNAVPERS or CMC, as appropriate, or a member’s

commanding officer, may delay the appointment of an

officer selected for promotion. If the appointment is

delayed, the delaying officer shall, as soon as

practicable, forward the information required by

paragraph 23b to SECNAV for ratification. Promotion

may be delayed under this instruction if:

b. Command Requests for Delay

(1) Commanding officers who consider delay of an

officer’s promotion warranted and delay an officer’s

promotion, shall submit justification for the delay to

SECNAV via, CHNAVPERS (NMPC-82)(copy to

COMNAVMILPERSCOM (NMPC-22)), or CMC

(MMPR-1) as appropriate, within 10 days of

knowledge of the circumstances warranting the delay,

or as soon thereafter as practicable.

(2) Each justification for delay to SECNAV must

include the following documents:

(a) A copy of the notification to the officer and;

(b) A statement by the officer. If the officer declines to

make a statement, the officer concerned shall submit a

signed statement to that effect;

commanding officer based on his or her knowledge of

the officer involved; and

(d) A recommendation by CHNAVPERS or DC/s (M

& RA), as appropriate.

SECNAV INSTRUCTION 1420.1A, 4 23.

66a

The government would be hard-pressed to argue that it was

not practicable to obtain ratification in less than five months;

however, because of the court’s findings as to other

procedural deficiencies in the delay of Lt. Bames’

promotion, the court does not reach this issue. The court

notes however, that in the case of Commander Robinson,

BCNR No. 11165-90 (Oct. 30, 1990) discussed infra, relief

was granted by the Board of Correction of Naval Records

where the Secretary of the Navy had not approved of his

promotion delay prior to his original promotion date. Here,

the effective date of Lt. Barnes promotion was Apmil 1, 1998.

The Assistant Secretary of the Navy did not ratify the delay

until August 24, 1998.

The Board finds, as it did in the prior cases at

enclosures (8) and (9), that 10 U.S.C. 624(a)(2) ...

requires that an officer’s promotion be effected when

due unless it is properly delayed. Since no Secretarial

authority for the delay in Petitioner’s case had been

obtained when 1 June 1983 arrived, the Board

concludes that his promotion should have been effected

on that date, but was not. The Board does not accept

Petitioner’s proposition that the promotion took effect

on that date by operation of law; however, the Board

does find his record should be corrected to show the

Secretary, acting for the President, appointed him to the

grade of commander on that date.'°

S.A.R., Tab 2, unnumbered 56, emphasis in original.

Semantics aside, the result is the same, absent Secretarial approval of

his promotion delay, Robinson was promoted--whether titled a

promotion as a matter of law or a promotion that should have been

effected.

67a

D. Immediate notification

Lt. Barnes also argues that the March 17, 1998

memorandum was not delivered to him before April 1, 1998,

the effective date of his appointment as required by 10

U.S.C. § 624(d), and it was not “impracticable” to do so, the

only exception to the statutory requirement that notice be

given prior to the effective date. The government counters

that Lt. Barnes, who was based in Misawa, Japan, was

attached to USS JOHN S. MCCAIN, which was at sea

patrolling the Arabian Gulf at the time, so it was

“impracticable” to deliver the March 17, 1998 memorandum

to him immediately. The March 17, 1998 memorandum was

sent to plaintiff's Commanding Officer at Misawa, Japan.

On April 9, 1998, the Executive Officer at Misawa, Japan

notified the Chief of Naval Personnel who authored the

memorandum that Lt. Barnes was out to sea but would be

returned to Misawa as soon as possible. The Executive

Officer did not want the letter mailed to Lt. Barnes because it

may not have arrived until after he had already departed

from the ship. The letter was given to Lt. Barnes on April

21, 1998 following his return to the base in Misawa, Japan.

Lt. Barnes was not given the March 17, 1998 notice until

he returned from sea on April 21, 1998, which is too late

plaintiff argues. Plaintiff also asserts that the Navy knew

about the November 24, 1997 non-judicial punishment cited

in the March 17, 1998 memorandum as reason for the delay

and could have given Lt. Barnes notice earlier. The

government defends the delay, asserting it was not practical

to get the delay notice to plaintiff on the ship and it would

have been improper and disrespectful for the Navy to inform

him in that manner; therefore, under the circumstances,

calling plaintiff back to Japan and giving him the notice in

person was reasonable. The government also argues that the

statute only requires notice of the grounds for the delay, not

68a

notice of the delay itself. As plaintiff already was aware of

the prior proceedings according to the government, any delay

in getting the memorandum to him was inconsequential.

10 U.S.C. § 624(d)(3) requires notice of a promotion delay

before the effective date of appointment, here April 1, 1998,

unless “it is impracticable.” “Impracticable” is defined as:

“{iJmpossible to do or carry out.” The American Heritage

Dictionary, 3rd ed. 1992 at p. 908. It was not impossible to

notify Lt. Barnes. The record indicates that on March 19,

1998, two days after the date of the March 17, 1998

memorandum, Lt. Barnes was informed via email that a

Board of Inquiry was to be convened to consider his

retention in the Navy. Clearly communication via email was

possible. However, because of the court’s rulings herein,

and because determining when giving notice was practical in

the military may impinge more on merits and timing

decisions vice procedural determinations, it is not necessary

to resolve this issue.

Ratification and extension of initial delay

On August 14, 1998, Rear Admiral Schmidt, Deputy Chief

of Naval Personnel, communicated to the Secretary of the

Navy, seeking ratification and extension of the delay of Lt.

Barnes promotion “...until all related administrative actions

are completed.” A.R. IV, p. 12. The request was approved

on August 24, 1998 by Assistant Secretary of the Navy

Bernard Rostker. Jd. Reference was made to the non-

judicial punishment of October 15, 1997, the March 17, 1998

delay memorandum, and the Board of Inquiry’s decision to

retain Lt. Barnes.

Plaintiff argues that this August 24, 1998 attempt at further

delay (assuming one gets beyond the validity and expiration

of the March 17, 1998 delay memorandum) was defective

69a

because: (1) the letter failed to give a supporting rationale as

required by Paragraph 23(d) of the regulation; (2) any

further d «. had to be approved by the Secretary of the

Navy unde. .’aragraph 23(d) of the regulation, and Assistant

Secretary Rostker lacked authority to extend the delay; (3)

ne temporal “period” of delay required by statute and

Paragraph 23(d) was specified; and (4) Lt. Barnes was not

notified that the delay was being extended, nor afforded an

opportunity to respond as required by both statute and

regulation. Therefore, the extension of delay being

ineffective, Secretary Danzig’s subsequent removal of his

name from the promotion list (discussed hereinafter) was

ineffective as plaintiff had already been promoted by

operation of law.

A promotion may not be delayed more than six months

from the original effective promotion date unless the

Secretary specifies a further period of delay. 10 U.S.C. §

624(d)(4) (“An appointment of an officer may not be delayed

under this subsection for more than six months after the date

on which the officer would otherwise have been appointed

unless the Secretary concermed specifies a further period of

delay.”). Navy regulations also contain the six month

maximum unless a further “period of delay” is specified.

Paragraph 23(d) of SECNAVINST 1420.1A provides:

d. Limitations on Delay. The promotion of an officer

may not be delayed under this paragraph for more than

six months after the date on which the officer would

otherwise have been promoted, unless SECNAV

specifies a further period of delay. The CHNAVPERS

or CMC will submit timely requests, with supporting

rationale, for any extension of delay of promotion. An

officer’s promotion may not be delayed more than 90

days after final action has been taken in any criminal

case against the officer in a Federal or state court, more

70a

than 90 days after final action has been taken in any

court-martial against the officer, or more than 18

months after the date on which the officer would

otherwise have been promoted, whichever is later.

(emphasis added).

August 14, 1998 is less than six months from Apmi 1,

1998, the effective date of promotion; accordingly, the

request for extension was not untimely. The request for

ratification and extension was by the Chief of Naval

Personnel to the Secretary of the Navy in compliance with

the regulation. The next inquiry is whether a further “period

of delay” as required by both the statute and the regulation

was specified? Plaintiff argues a period of time must be in

calendar increments. The government disagrees, asserting

that the request for an extension “until all related

administrative actions are completed” properly defined a

specified period of delay. “Period” is defined in the

American Heritage Dictionary (3rd ed. 1996) in part as “an

interval of time characterized by the occurrence of a certain

condition, event or phenomenon: a period of economic

prosperity.” The court finds that as long as other time

constraints of the statute are met, the specification of a

period of delay by reference to events such as the completion

of administrative and other procedures was not improper.

The ratification and extension of the delay was approved

by Bernard Rostker as Assistant Secretary of the Navy for

Manpower and Reserve Affairs. Lt. Barnes argues that

Assistant Secretary Rostker lacked express authority to

extend the delay and that the Secretary’s authority is non-

delegable, citing In re Robinson, BCNR No. 11165-90

(October 30, 1990). Robinson cited a JAG advisory opinion

in a previous case that the Secretary’s power to delay a

promotion was not-delegable. The JAG opinion that was

submitted to the Board for Correction of Naval Records in

7la

Lt. Barnes’ case corrected that earlier opinion and opined

that in this instance, Assistant Secretary Rostker had

appropriate authority to extend Lt. Barnes’ promotion delay.

The court concludes that if the delay had been effective

and/or had not expired of its own terms, Assistant Secretary

Rostker had authority to act on behalf of the Secretary to

ratify and extend the promotion delay. Assistant Secretary

Rostker’s principal duty was the supervision of Naval

manpower affairs. 10 U.S.C. § 5016. He had authority to

act for the Secretary in personnel matters. 32 C.F.R. §

700.203(e) (1998) (“The Assistant Secretary of the Navy

[Manpower, Reserve Affairs and Logistics] is responsible for

the overall supervision of manpower and reserve component

affairs of the Department of the Navy”); 32 C.F.R. §

700.203(b) (1998) (“The Civilian Executive Assistants

[defined in Section 700.203(a) as including the Assistant

Secretaries of the Navy] are authorized and directed to act

for the Secretary within their assigned areas of

responsibility”); SECNAVINST 1420.1A, J 26(a) (the

Assistant Secretary of the Navy is responsible for the

“management oversight of the Promotion” systems);

SECNAVINST 5430.7L5(c) (the Assistant Secretaries are

“authorized and directed to act for the Secretary of the Navy

throughout the Department of the Navy within his assigned

area of responsibility” and are responsible for the overall

supervision of the manpower and military personnel affairs).

The court agrees with the government that the delay of an

officer’s promotion falls within the realm of administration

of manpower and reserve affairs. Assistant Secretary

Rostker had authority to ratify and extend the delay of Lt.

Barnes’ promotion assuming the initial delay had complied

with procedural requirements.

The court rejects plaintiff's argument that his delay could

not be longer than 90 days from the December 12, 1997

72a

report of his nonjudicial punishment. Subsection 624(d)(4)

limits delay to no more than 90 days following completion of

court-martial proceedings or a criminal case, or more than 18

months after the date the original date of the officer’s

promotion--here April 1, 1998. The purported extension of

August 14, 1998, less than 18 months thereafter, was not

untimely.

Plaintiff also argues that the August 14, 1998 letter does

not contain the supporting rationale required by 4 23d, and

that the non-judicial punishment proceedings and the Board

of Inquiry were completed and could not serve as

“supporting rational” which, must be supplied by the

officer’s commanding officer and based on his or her

knowledge must accompany “[e]ach justification for delay.”

4] 23b(2). The further period of delay cannot be the same as

the initial period of delay, plaintiff argues because a

“rationale” under § 23(d) must be something new. Finally,

plaintiff argues he did not get written notice as required by

subsection 624(d)(3)--and it was not impracticable to do so.

Lt. Barnes was not given a copy of the August 14, 1998 and

August 24, 1998 actions until they were obtained through the

Freedom of Information Act.

In response, the government argues the August 14, 1998

memorandum’s reference to his non-judicial punishment,

and to the March 17, 1998 promotion delay memorandum

were sufficient notification because subsection 624(d)(3)

only requires notice of the grounds for delay. The

government also argues notice applies only to the initial

delay, not to any extension.

The court concludes that while subsection 624(d)(3), cited

above, provides for written notice of the grounds for delay,

not of the delay itself, the officer also has the nght to make a

written statement in response to the delay action taken. (“An

73a

officer whose promotion has been delayed under this

subsection shall be afforded an opportunity to make a written

statement to the Secretary concerned in response to the

action taken.”). Under the government’s interpretation, an

officer, aware of prior misconduct would have to be

clairvoyant to predict all actions the government could take.

In order to read these sections harmoniously, the officer must

know about the delay in order for the officer to respond. Lt.

Barnes was not “afforded an opportunity to make a written

statement to the Secretary concerned in response to the

action taken” in the August 14, 1998 memorandum as

required by statute. 10 U.S.C. § 624(d)(4).'° Furthermore,

SECNAVINST 1420.1A J 23(b)(2) mandates that “each

justification for delay to SECNAV must include ...[a] copy

of the notification to the officer.” No notification was given

to Lt. Bames.

Removal

On September 8, 1998, the Chief of Naval Personnel,

referring to SECNAVINST. 1420.1A, notified Lt. Barnes

that his name may be removed from the Fiscal Year 98

Active Lieutenant Commander Line Promotion List. He was

afforded an opportunity to submit a statement within ten

days. A.R. IV, p. 10. Lt. Barnes submitted favorable

statements from his commander and others. On March 22,

1999, Chief of Naval Personnel recommended that his name

be removed from the promotion list. A.R. IV, p. 2. That

recommendation was approved on April 26, 1999 by

Secretary Richard Danzig. A.R. IV, p. 2.

The court also rejects the government’s argument that the officer is

entitled only to notice of the initial delay. The notice provision of 10

U.S.C. § 624(d)(3) applies to delays “under this subsection”--the entire

subsection (d) of Section 624.

74a

Removal from a promotion list is governed by

SECNAVINST 4 23(e):

e. Removal from the Promotion List. If during a

delay of promotion, it is determined that removal from

the promotion list is appropriate, removal action under

paragraph 17a may be initiated. Although removal

action is contemplated, requests for delay extensions as

provided in paragraph 23d shall be submitted to

SECNAV as necessary until the officer’s name is

removed from the promotion list.

Paragraph 17a provides:

SECNAV may remove the name of any officer from a

promotion list to any grade below 0-7. CHNAVPERS

or CMC, as appropriate, may submit requests for such

action to SEC-NAV.

The government’s position is that the name of the officer

can be removed from a promotion list at any time prior to

appointment. That position conflicts with the above

regulatory constraints that removal action be initiated during

a period of promotion delay. Even if the promotion was

delayed without compliance with statutory procedure, Lt.

Bares cannot be appointed Lt. Commander--only the

President can do that, the government argues. Indeed, the

government’s position in this case is that the President’s

authority to remove a name from a promotion list is absolute

and unaffected by the constraints of the mandatory “shall” of

§ 624(a)(2)."”

'" McCarthy v. United States, 7 Cl. Ct. 390 (1985), rev'd, 785 F.2d 326

(Fed. Cir. Dec. 26, 1985) (Table), cited by the government as a summary

reversal of a finding of promotion as a matter of law due to procedural

delays in the promotion delay, is not inconsistent with the court’s

findings herein. In McCarthy, the applicable statute required prompt

75a

The court’s recognition that Lt. Barnes’ promotion was

effected does not impact any substantive military promotion

decision. Statutory mandates limit military discretion and

constrain delays of Senate confirmed promotions. This is

consistent with Law v. United States, 11 F.3d 1061 (Fed. Cir.

1993), relied on by the government, which found compliance

with the statutory requirements for delay of a promotion in

the Coast Guard. Law’s analysis of the Coast Guard’s

compliance with the delay provisions and conclusion that the

delays in Lieutenant Law’s promotion complied with the

statute, is consistent with the analysis applied here, albeit

reaching a different conclusion. Distinguishing authority

holding that the judiciary is without authority to grant a

promotion, the Federal Circuit held that the Court of Federal

Claims had jurisdiction to grant relief if the appointment had

action to end a promotion delay as soon as the grounds for the delay no

longer existed. The court determined that the basis for the delay no

longer existed; there was no further need to evaluate the officer’s

conduct; there was no further grounds to delay the promotion.

Accordingly, the failure to promptly end the period of delay was an abuse

of discretion. 7 Cl. Ct. at 395. The summary unpublished reversal by the

Federal Circuit is of questionable precedence. More importantly, the

Federal Circuit’s clear pronouncements in Law, and others, have guided

this court. Finally, in this case the court has applied objectively

determinable record facts to statutory and regulatory mandates.

Likewise, D’Arco v. United States, 194 Ct. Cl. 811, 441 F.2d 1173,

1175 (1971) relied on by the government for the president’s unfettered

nght to remove a name from a promotion list, did not involve questions

of the government’s compliance with statutory, regulatory and self-

imposed limitations on delay, and is thus distinguishable. Moore v.

United States, 5 Cl. Ct. 457 (1984), noting recent legislation that limited

promotion delays, applied prior law which did not; Voge v. United

States, 844 F.2d 776, 780 (Fed. Cir. 1988) concerned termination of

Special Pay to which a physician was otherwise entitled, which while not

reviewable on the merits, was subject to review for compliance with

procedural constraints. These, as well as the other cases relied on by the

government, are inopposite.

76a

been effected because of improper delay--if Lt. Law’s

arguments about improper delay of promotion were

meritorious. “That Law’s claim fails on the merits does not

negate the court’s jurisdiction.” Jd., at 1065. Here the court

has found Lt. Barnes arguments about improper delay

meritorious.

The court does not promote Lt. Barnes. The Navy’s delay

accomplished his promotion. The court is not granting Lt.

Bames promotion but only recognizing that it occurred.

Law, 11 F.3d at 1065. The President and Senate approved

and confirmed his promotion effective April 1, 1998. Under

the clear language of subsection 624(a)(2), that promotion

“shall” occur unless there was compliance with the five

delay provisions. Any delay must have complied with

applicable statutes and regulations as well as the Navy’s

determination of the duration of the delay--until all

administrative and disciplinary proceedings related to his

nonjudicial punishment were completed. The court

concludes that the Navy failed to comply with these

limitations, and therefore, under the statute, Lt. Barnes’

promotion was effected. Accordingly, the purported removal

of Lt. Barnes name from the promotion list was of no effect.

The court finds Lt. Barnes was legally entitled to the

promotion and is entitled to the pay that should have

accompanied that accomplishment. This result necessarily

overturns his release from active duty as he has not been

passed over for promotion in his correct rank to which he

was promoted.

Decisions of Board of Correction of Naval Records

On May 16, 2000, Lt. Barnes submitted an Application for

Correction of Naval Records. On May 17, 2000, the court

stayed this litigation pending the Board’s decision. On

e T7Ta

January 11, 2001, the Board denied the Application.'® In his

application Lt. Barnes argued that he was promoted as a

matter of law and, alternatively, that relief should be granted

to correct an error or injustice as had been done in similar

cases, particularly Jn re Robinson, BCNR No.11165- 90,

Oct. 30, 1990. The Board determined that Lt. Barnes was

not promoted as a matter of law; equitable arguments were

not addressed. On November 26, 2001, the Assistant

General Counsel (Manpower and Reserve Affairs) requested

the Board “provide a report that addresses whether petitioner

is entitled to be promoted in order to correct an error or

injustice,” because “the [January 11, 2001] decision provides

no detailed explanation regarding petitioner’s entitlement to

purely equitable relief.” Second Supp. A.R. at 2-3. On

December 4, 2001, the court continued its stay pending the

Board’s reconsideration. On December 19, 2001, the Board

found insufficient evidence of probable material error or

injustice. In concluding that equitable relief was not

warranted, the Board concluded that Lt. Barnes “came to the

Board with unclean hands, noting the misconduct which

resulted in the delay of [his] promotion and [his] ultimate

removal from the promotion list.” Second Supp. A.R. at 2.

Distinguishing Robinson, the Board noted that relief was

granted there not on equitable grounds but because “no

Secretarial authority for the delay of [Robinson’s] promotion

had been obtained when his projected promotion date

arrived, his promotion should have been effected on that date

in accordance with title 10 of the United States Code, section

624(a)(2).” Id.

The standard of review of a decision of a corrections board

is whether the decision is arbitrary, capricious, unsupported

“After careful and conscientious consideration of the entire record,

the Board found that the evidence submitted was insufficient to establish

the existence of probable material error or injustice.” S.A.R., Tab 6.

78a

by substantial evidence or contrary to law. Chappell v.

Wallace, 462 U.S. 296, 303, 103 S. Ct. 2362, 2367, 76 L. Ed.

2d 586 (1983); Haselrig v. United States, 333 F.3d 1354,

1356 (Fed. Cir. 2003); Martinez v. United States, 333 F.3d

1295, 1313-14 (Fed. Cir. 2003); Porter v. United States, 163

F.3d 1304, 1312 (Fed. Cir. 1998).

Lt. Barnes argues the Board’s decisions were arbitrary,

capricious, unsupported by substantial evidence and contrary

to law because of legal errors discussed above, and because

of the Board’s invocation of the doctrine of unclean hands.

He asserts the Board granted equitable relief to individuals

who engaged in much more egregious behavior, to impose a

higher standard or eliminate a previous standard without

warning would be arbitrary and capricious. Plaintiff cites

two previous cases where the Board made legal and

equitable determinations inconsistent with those applied to

Lt. Barnes. In one (No. 6971-87; July 22, 1987) the Board

concluded that the officer’s promotion delay had not been

approved by the Secretary as required by Navy regulation.

Recognizing that his promotion occurred because the

Secretary of the Navy had not approved of the promotion

delay before the scheduled promotion date (an infirmity in

Lt. Barnes’ purported delay), the Board concluded that:

since no legally valid delay had been effected, Title 10

U.S.C. 624(a)(2) made it mandatory that petitioner,

who was an officer on a promotion list for his

competitive category, be promoted to the next higher

grade when additional officers in that grade and

competitive category. were needed... To avoid a

requirement to effect Petitioner’s promotion, all that

would have been needed would have been to obtain a

summary Secretarial review and approval of a delay

request before the date the promotion was scheduled.

However, since this was not done, the Board finds that

79a

Petitioner’s promotion should have been effected when

scheduled.

Plaintiff's Cross-Motion, App. unnumbered 9.

The Board recommended his promotion be recognized

with appropriate record correction despite that fact that

following Senate confirmation of his promotion, there was

investigation into serious allegations which led to a Board of

Inquiry. The Board of Inquiry found insufficient evidence to

support the allegations, but concluded that while the officer

should be retained in the Navy, he should be removed from

the promotion list because of findings that the officer served

alcohcl, showed pornographic movies to juveniles without

their parent’s consent and often consumed alcohol to excess

at social functions and then carelessly discussed official

matters.

In the other case cited by Lt. Barnes (6532-96; August 4,

1998), a Marine sought reinstatement and promotion.

Allegations of misconduct involved sexual harassment of

and fraternization with an enlisted female Marine and

conduct unbecoming an officer. The Board concluded that

no action was taken to extend an initial promotion delay

beyond six months as required by subsection 624(d)(4);

consequently, the officer should have been promoted the

following day. Plaintiff's Cross-Motion, App. unnumbered

45.

In Robinson, the Board opined that his promotion should

have been effected because the Secretary of the Navy had not

approved the delay before the promotion’s effective date.

While not acknowledging the concept of promotion by

operation of law, the Board in Robinson concluded that the

lack of Secretarial approval of a delay prior to the effective

date of the promotion was an error and an injustice

80a

warranting relief. The Board recognized that under Section

624(a)(2) the promotion occurred absent a delay that

complied with statutory and regulatory requirements. It is

unfortunate that this recognition did not occur here.

The several failures to comply with statute and regulations

in the attempt to delay Lt. Bares’ promotion were legal

error. “[(Ljegal error includes the military’s ‘violation of

statute, or regulation, or published mandatory procedure...’”

Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir.

1993), citing Skinner v. United States, 594 F.2d 824, 830,

219 Ct. Cl. 322 (1979). See also Muse v. United States, 21

Cl. Ct. 592, 608 (1990) (“the failure of the rating officials to

follow their own regulations was legal error.”).

Alternatively, plaintiff argues the Board’s December 2001

decision denying equitable relief was arbitrary and

capricious. In the three prior Board cases cited by Lt. Barnes

the promotion was effected because of improper delay. In

Robinson, as in Lt. Barnes’ case, there was no Secretarial

approval of the officer’s delay prior to its projected effective

date. In Robinson, citing subsection 624(a)(2), the Board

found the promotion occurred; in Lt. Barnes’ case, the

Board found the promotion did not occur. In the other two

cases there were irregularities in the delay and the Board

found the officers should have been promoted; in Lt.

Barnes’ case, the Board found the promotion did not occur.

““An agency is obligated to follow precedent, and if it

chooses to change, it must explain why.’” British Steel PLC

v. United States, 127 F.3d 1471, 1475 (Fed. Cir. 1997), citing

M.M & P. Maritime Advancement, Training, Educ. & Safety

Program v. Dept. of Commerce, 729 F.2d 748, 755 (Fed. Cir.

1984). The government offered no rationale for the legal

distinctions. As for the equitable distinctions, the

government asserts that equity always involves weighing of

fault and fault was not personal in Robinson where the

officer was held responsible, not because of any personal

8la

involvement, but because he was the commanding officer for

a military operation that went terribly awry. In contrast, Lt.

Barnes engaged in personal conduct of fraternizing with

enlisted subordinates, conduct unbecoming an officer. While

that is true, Commander Robinson was found to be

personally culpable and personally disciplined. In the other

two cases, the officer’s improprieties at least approximated

those of Lt. Barnes. Relief was granted in previous cases

where hands were at least as dirty as Lt. Barnes. Degree of

culpability and unclean hands were never mentioned in the

other decisions and the government offered no reason why

the doctrine of “unclean hands” was applied to Lt. Barnes

and not to the other officers. See Houston v. United States,

156 Ct. Cl. 38, 297 F.2d 838, 842 (1962) (the arbitrary and

Capricious standard is met when an agency acts on “‘a mere

whim or caprice.”). However, because of the court’s finding

that the Board’s decision was contrary to law, the court need

not address whether Lt. Barnes’ case was treated differently

and therefore arbitrarily.

Conclusion

For the foregoing reasons, plaintiff's motion for judgment

on and administrative record is GRANTED and the

government’s motion is DENIED. The parties are directed

to consult and propose, by agreement if possible, the terms

of judgment and file a Joint Status Report by July 31, 2003.

82a

APPENDIX D

United States Court of Appeals,

Federal Circuit.

Rear Admiral (LH) Noel K. DYSART,

Medical Corps, U.S. Navy (Ret.),

Plaintiff-Appellant,

¥.

UNITED STATES,

Defendant- Appellee.

No. 03-5106.

Decided: May 26, 2004.

Before RADER, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

On June 12, 1998, the President removed appellant Rear

Admiral (Lower Half) Noel K. Dysart from the promotion

list for the grade of rear admiral in the United States Navy

(“Navy”). The appellant filed suit in the Court of Federal

Claims, asserting that he had been automatically promoted to

that grade as of September 1, 1997, and that he was entitled

to the corresponding pay and benefits. In addition, the

appellant sought reinstatement to the Navy and asserted a

separate claim for medical additional special pay (“MASP”’).

The Court of Federal Claims granted summary judgment for

the government on the administrative record. Dysart v.

83a

United States, No. 02-294C (Fed. Cl. May 5, 2003). We

affirm.

BACKGROUND

This case presents significant questions concerning the

appointment process for military officers. The Constitution

provides that the President has the authority to nominate and,

“by and with the Advice and Consent of the Senate,” to

appoint “Officers of the United States.”” U.S. Const. art. II,

§ 2, cl. 2. Three separate actions are ordinarily required for a

person to be appointed to office pursuant to this provision:

the President’s nomination, confirmation by the Senate, and

the President’s appointment after Senate confirmation. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155-56, 2 L.

Ed. 60 (1803). In accordance with this process, the

President first selects a nominee and sends the nomination to

the Senate. The Senate acts on the nomination and

determines whether or not to confirm the nominee. If the

nominee is confirmed, the President appoints the officer and

signs a commission or performs some other public act as

evidence of the officer’s appointment. See id. at 157. The

Constitution also provides that “Congress may by Law vest

the Appointment of such inferior Officers, as they 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.

A naval officer is an “Officer of the United States” in

accordance with Article II. See United States v. Mouat, 124

U.S. 303, 307, 23 Ct. Cl. 490, 8 S. Ct. 505, 31 L. Ed. 463

(1888) (holding that a naval officer who “holds his place by

virtue of an appointment by the president” is an “officer of

the United States”). The permanent promotion of a military

officer to a higher grade, as well as his initial appointment, is

subject to this constitutional process. See Weiss v. United

84a

States, 510 U.S. 163, 174, 114 S. Ct. 752, 127 L. Ed. 2d 1

(1994) (holdmg that “the Appointments Clause [cannot be

circumvented] by unilaterally appointing an incumbent to a

new and distinct office”), aff’g 36 M.J. 224, 227 (C.M.A.

1992) (“All regular officers of the military services are

appointed by the President and confirmed by the Senate....

Active duty military officers are appointed and confirmed

again upon each promotion to a grade above pay grade O-

3.”); Shoemaker v. United States, 147 U.S. 282, 300-01, 13

S. Ct. 361, 37 L. Ed. 170 (1893).'

Beginning in 1916, Congress attempted to regularize the

promotion process for military officers, including naval

officers. In particular, Congress directed the Navy to use a

process involving selection boards for promoting naval

officers to fill vacancies in the grades of commander,

captain, and rear admiral. See Act of Aug. 29, 1916, ch. 417,

39 Stat. 556, 578-79. Pursuant to the statute, a selection

board selected officers in a particular grade to fill vacancies

in the next higher grade and submitted a report with its

recommendations “to the President for approval or

disapproval.” J/d., 39 Stat. at 579. The selection board

process was expanded in 1947 to encompass the promotions

of all naval officers to grades above lieutenant (junior grade).

See Officer Personnel Act of 1947, § 104(a), 61 Stat. 795,

800.

In 1980, the Defense Officer Personnel Management Act

(“DOPMA”), Pub. L. No. 96-513, 94 Stat. 2835 (1980), was

enacted. DOPMA provides for selection boards, which

recommend officers between the grades of lieutenant (junior

The President has the authority to make temporary appointments and

promotions outside of the constitutional process in times of war or

national emergency. See 10 U.S.C. § 603 (2000).

85a

grade) and rear admiral (lower half)” (in the Navy) and first

lieutenant and brigadier general (in the Army, Air Force, and

Marine Corps) for promotion to the next higher permanent

grade. See 10 U.S.C. § 611(a) (Supp. I 2001). The board

submits its recommendations in a written report to the

Secretary of the appropriate military branch. See 10 U.S.C.

§ 617 (2000). After reviewing the report, the Secretary

submits the report “to the Secretary of Defense for

transmittal to the President for his approval or disapproval.”

Id. § 618(c){1). The statute also requires the Secretary

concerned to place the names of the approved officers within

particular categories (called “competitive” categories) on a

promotion list in order of their seniority once the President

has approved the selection board’s report. See id. §

624(a)(1). The statute provides:

[O]fficers 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. Promotions shall be made in the

order in which the names of officers appear on the

promotion list and after officers previously selected for

promotion in that competitive category have been

promoted.

Id. § 624(a)(2) (emphases added).

The statute also provides that the Secretary may prescribe

regulations that provide for the delay of an officer’s

DOPMaA originally designated this grade as “commodore admiral.”

See § 105, 94 Stat. at 2851. In 1981, the grade was changed to

“commodore,” see Department of Defense Authorization Act, 1982, Pub.

L. No. 97-86, § 405, 95 Stat. 1099, 1105 (1981), and it was again

changed to “rear admiral (lower half)” in 1985, see Department of

Defense Authorization Act, 1986, Pub. L. No. 99-145, § 514, 99 Stat.

583, 628 (1985).

86a

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.” Jd. § 624(d)(2). Pursuant to this authority,

the Secretary has promulgated regulations in paragraph 23 of

Secretary of the Navy’s Instruction (‘“Secretary’s

Instruction”) 1420.1A. The statute and regulations impose

two limitations on the Secretary’s authority to delay an

officer’s appointment in accordance with subsection 624(d).

First, the officer whose appointment has been delayed must

be “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.” Jd. § 624(d){3).

Second, the officer’s appointment “may not be delayed under

this subsection for more than six months after the date on

which the officer would otherwise have been appointed

unless the Secretary concerned specifies a further period of

delay.” Jd. § 624(d)(4). The regulations include similar

provisions. See Secretary’s Instruction 1420.1A ¥ 23 (1991).

The current statute, like its predecessor, states that

appointments are made “by the President, by and with the

advice and consent of the Senate,” id. § 624(c); 10 U.S.C. §

5791 (1976) (repealed 1980).° The Navy follows a formal

process of nomination, confirmation, and appointment for its

officers, apparently designed to take account of the

constitutional requirements. In accordance with the statute,

the Secretary of the Navy.convenes selection boards and

approves their selections. See 10 U.S.C. §§ 611(a), 618(a).

The statute provides that appointments of junior officers--to the

grades of lieutenant (junior grade) or lieutenant (in the Navy) and first

lieutenant or captain (in the Army, Air Force, and Marine Corps)-- are

“made by the President alone.” 10 U.S.C. § 624(c). The President has

delegated this authority to the Secretary of Defense. See Exec. Order No.

12,396, § 1(c), 3 C.F.R. 234 (1983), reprinted in 3 U.S.C. § 301 (2000).

87a

The selections are forwarded to the Chairman of the Joint

Chiefs of Staff, if required; the Secretary of Defense; and the

President, who may remove names from the recommended

list. See id. § 618(b)-(d). The President then nominates

officers from the recommended list and forwards the

nominations to the Senate. See generally Department of

Defense Instruction 1320.4 (1995) (providing regulations

governing the nomination processes of the military

branches). If an officer is not confirmed by the Senate, his

name must be removed from the promotion list. 10 U.S.C. §

629(b). Once the officer has been confirmed by the Senate,

he must next be appointed. For example, when an officer is

appointed to the grade of rear admiral, the Special Assistant

for Flag Officer Management and Distribution prepares a

letter of appointment, which can only be signed with the

express approval of the Secretary of the Navy, acting for the

President. This letter is issued to the appointee, along with a

certificate of appointment. The appointee need not formally

accept the appointment, as “[a]n officer who is appointed to

a higher grade under section 624 of this title is considered to

have accepted such appointment on the date on which the

appointment is made unless he expressly declines the

appointment.” 10 U.S.C. § 626(a). The Secretary concerned

determines the date of the appointment, pursuant to 10

U.S.C. § 741(d).* See id. § 624(b)(2).

* — Section 741(d) provides, in pertinent part:

(1) The date of rank of an officer of the Army, Navy, Air Force, or

Marine Corps who holds a grade as the result of an original

appointment shall be determined by the Secretary of the military

department concerned at the time of such appointment. The date

of rank of an officer of the Army, Navy, Air Force, or Marine

Corps who holds a grade as the result of an original appointment

and who at the time of such appointment was awarded service

credit for prior commissioned service or constructive credit for

advanced education or training, or special experience shall be

determined so as to reflect such prior commissioned service or

constructive service. Determinations by the Secretary concerned

88a

In this case, a selection board selected the appellant for

promotion to rear admiral in the fall of 1995. The President

approved the selection board’s recommendation, and the

appellant was nominated by the President to be rear admiral

on March 20, 1996. See 142 Cong. Rec. 5,626 (1996). The

appellant was confirmed by the Senate on June 20, 1996, see

142 Cong. Rec. 14,827 (1996), and he was placed on the

Staff Corps Flag Officer Promotion List with a projected

promotion date of September 1, 1997. On January 24, 1997,

the Office of the Chief of Naval Operations informed the

appellant that the Secretary of the Navy was considering

recommending that the appellant’s name be removed from

the promotion list. The officer who was next in line behind

the appellant for promotion to rear admiral was promoted on

September 1, 1997. On September 11, 1997, Chief of Naval

Personnel notified the appellant that his promotion to the

grade of rear admiral was delayed. Two additional officers

were promoted to rear admiral on March 1, 1998, and June 1,

1998, respectively.

On September 26, 1997, the Secretary of the Navy

recommended that the appellant’s name be removed from the

promotion list, and the President removed the appellant’s

name from the promotion list on June 12, 1998, more than

six months after the September 1, 1997, date on which the

under this paragraph shall be made under regulations prescribed by

the Secretary of Defense which shall apply uniformly among the

Army, Navy, Air Force, and Marine Corps.

(2) Except as otherwise provided by law, the date of rank of an

officer who holds a grade as the result of a promotion is the date of

his appointment to that grade.

10 U.S.C. § 741(d)(1)-(2) (Supp. I 2001).

89a

officer next-in-line to the appellant was promoted.° The

reasons for the President’s removal of the appellant’s name

from the promotion list need not detain us. In essence, the

Secretary of the Navy recommended to the President that the

appellant’s name be removed because the appellant had

received an adverse fitness report from his commanding

officer, Vice Admiral Koenig, concerning the conduct of the

appellant’s relationship with a woman during the period after

he had become separated from his wife. As discussed in

greater detail below, one question is whether the appellant

had automatically been promoted in accordance with

subsection 624(a)(2) before the President removed his name

from the promotion list. Another is whether the President

was obligated to appoint him. Because the Navy viewed him

as not promoted, the appellant was required to retire from

active duty on February 28, 2002, when he reached the

maximum permissible tenure in the grade of rear admiral

(lower half).

The appellant also submitted a request for MASP to the

Chief of the Bureau of Medicine and Surgery on December

4, 1996. MASP is “{a]n entitlement for medical corps

officers who agree to remain on active duty for a period of

not less than 1 year as computed from the effective daie of

the [MASP] agreement,” provided as additional pay to

enhance the retention rate of such officers. Secretary’s

Instruction 7220.75C 4 7 (1990). The appellant sought

MASP in the amount of $15,000 for the period from January

1, 1997 to December 31, 1997. An officer seeking MASP

The President has the authority to “remove the name of any officer

from a list of officers recommended for promotion.” 10 U.S.C. § 629(a).

He has delegated this authority to the Secretary of Defense, but only for

grades below rear admiral (lower half) (in the Navy) and brigadier

general (in the Army, Air Force, and Marine Corps). See Exec. Order

No. 12,396, § 1(b).

90a

must “[djemonstrate an adequate level of military and

professional performance as determined and documented by

the commanding officer.” Jd. 4 7a(1). The appellant’s

request for MASP was denied, based at least in part on Vice

Admiral Koenig’s adverse fitness report, on January 13,

1997. The appellant argues that the fitness report was

improper and that he is entitled to MASP if the fitness report

is held invalid.

On March 26, 1998, the appellant applied to the Board for

Correction of Naval Records (“Board’’), seeking removal of

Vice Admiral Koenig’s fitness report from his records. The

appellant also sought the restoration of his name to the

promotion list, promotion to rear admiral effective

September 1, 1997, and payment of MASP, arguing that the

removal of his name from the promotion list and the denial

of MASP were based on the allegedly improper fitness

report. On January 29, 2002, the Board recommended that

the Secretary of the Navy provide all of the relief sought by

the appellant. However, the Assistant Secretary of the Navy

for Manpower and Reserve Affairs® rejected the Board’s

recommendation and denied the appellant’s requested relief.

On April 8, 2002, the appellant brought suit in the Court of

Federal Claims, alleging that he had been automatically

promoted to rear admiral as of September 1, 1997. He

sought the corresponding pay and benefits of that grade

along with the MASP of $15,000 that he had been denied. In

addition, because the appellant was required to retire from

active duty on February 28, 2002, he sought reinstatement to

The Secretary of the Navy has delegated the responsibility for

supervision of the Board to the Assistant Secretary of the Navy for

Manpower and Reserve Affairs. See 32 C.F.R. § 700.324(b) (2003).

9la

the Navy. The Court of Federal Claims granted the

government’s motion for summary judgment on _ the

administrative record. The court held that the President’s

removal of the appellant’s name from the promotion list was

proper and, therefore, that he had not been promoted by

operation of law. Dysart, slip op. at 15-16. The court also

held that the appellant’s claim for MASP was non-justiciable

because there was no procedural error in the Navy’s denial

of MASP. /d. at 17-18 (citing Voge v. United States, 844

F.2d 776, 779 (Fed. Cir. 1988)). The appellant timely

appealed, and we have jurisdiction pursuant to 28 U.S.C. §

1295(a)(3).

DISCUSSION

We review legal determinations such as the Court of

Federal Claims’ decision to award summary judgment on the

administrative record without deference, applying the same

standard of review as the Court of Federal Claims. Haselrig

v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003).

Accordingly, we must uphold the Secretary’s decision

denying the appellant’s relief unless the Secretary “acted in a

manner that is arbitrary, capricious, contrary to law, or

unsupported by substantial evidence.” Jd.

The appellant argues that he was promoted by operation of

law on September 1, 1997, when the officer next-in-line to

him was promoted, and before the President removed his

name from the promotion list on June 12, 1998. The

appellant recognizes that the statut

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.