Petition for Writ of Certiorari — Lewis v. United States, 128 S. Ct. 42 (2007) (No. 06-1289)

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ee OO U.S.

IN THE

Supreme Court of the Anited States

EVELYN L. Lewis, M.D.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

EUGENE R. FIDELL WALTER E. DELLINGER, III

FELDESMAN TUCKER LEIFER (Counsel of Record)

FIDELL LLP MATTHEW M. SHORS

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

Second Floor O’MELVENY & MYERS LLP

Washington, D.C. 20036 1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

Attorneys for Petitioner

QUESTION PRESENTED

The Defense Officer Personnel Management Act

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

officers who are nominated by the President and confirmed

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

unless their names are removed from the promotion list be-

fore the end of a prescribed statutory period. The question

presented is:

Whether giving effect to the plain language of DOPMA vio-

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

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

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS, STATUTES,

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c. NE FERIOIEY sococesontecossccerotnceseeenoeeretees 10

REASONS FOR GRANTING THE PETITION.............++. 13

I. THE QUESTION PRESENTED IS IMPOR-

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A. The Question Is Recurring ..........::cceseseeee 14

B. The Question Is Important ............::::scccceee 15

c. Absent The Court’s Review, The

Court Of Appeals’ Decision Creates A

Nationwide Rule Governing The Ap-

pointment Of Military Officers ................++ 17

Il. THE DECISION BELOW WRONGLY

SUBJECTS THOUSANDS OF QUALIFIED

MILITARY OFFICERS TO UNWAR-

RANTED PROMOTION DENIALS AND

Se ne 19

A. DOPMA’s Plain Language Provides

For Appointment When An Officer Is

Retained On The Promotion List ............... 19

ili

TABLE OF CONTENTS

(continued)

B. DOPMA Does Not Violate The Ap-

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ied DOPMA Does Not Violate Marbury.......... 27

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

Barnes v. United States,

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Barnes v. United States,

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Barnes v. United States,

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Bowsher v. Synar, |.

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Buckley v. Valeo,

I iia acct silicinenenevassivesenenbinennebbionebesianees 24

Dysart v. United States,

369 F.3d 1303, (Fed. Cir. 2004).............ccceseecsosees passim

Law v. United States,

BE Be FE re Cee BFF evicctececvccsevevcecensvetionceteninnens 14

Lewis v. Rumsfeld,

S96 F. DU. 26 FO CDC. ZOO1) 200.ccscrncorecensconccocsosvers 10

Lewis v. Rumsfeld,

No. 01-5295, 2003 WL 21018861 (D.C.

ee ED eeinscivneigecosnsectiawiasymicbonnniissiccsewtindantatini 1]

Lewis v. Rumsfeld,

No. 1:00CV02292 (RMU) (D.D.C June 2,

ae tis kiciscbi ancclchomis bdicvaices uazmumpdeetrneotsaaningiie 11

Marbury v. Madison,

ECR Bigs phy gt) ne 2, 27, 28

Morrison v. Olson,

Oe Fs I si cipdameseranenenetinnncnciiaanioniin 24, 26

Rolader v. United States,

es ee Fe veccsceinsceteinnsicvekeconnnens 11, 14, 18, 23

TABLE OF AUTHORITIES

(continued)

Page

United Sav. Ass’n of Tex. v. Timbers of

Inwood Forest Assocs., Ltd.,

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United States v. Hohri,

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Weiss v. United States,

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CONSTITUTIONAL PROVISIONS

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The, OE Bs 0 8. So vviiccdincirnicemnnin Be AP 6,

STATUTES AND REGULATIONS

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TABLE OF AUTHORITIES

(continued)

Page

Defense Officer Personnel Management Act

Technical Corrections Act,

Pub. L. No. 92-22, 95 Stat. 127 (1981)..........sseceseeeeees 22

John Warner Nat’! Defense Authorization Act

for Fiscal Year 2007,

Pub. L. No. 109-364, 120 Stat. 2083

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REE CEPT CEI BEN coccterierconensndvccsvietcerevensonsvcnine passim

OTHER AUTHORITIES

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Ss Bs PT IEe CRIED eccveesceserscecevitersinasorenteterninenbo 26

145 Cong. Rec. $4068

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145 Cong. Rec. $7966

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152 Cong. Rec. D1088

By Bhs IED sctnnnisisnteiscorevevserosinsviavineieniind 4,14

Amicus Br. of Dr. Lewis, et al., Dysart v.

United States, 2003 WL 24305578 ..........:scccssscesessereees 15

Department of Defense: Active Duty Military

Personnel by Rank/Grade,

http://siadapp.dior.whs.mil/personnel/MIL

ITAR Y/rg0612.pdf (Dec. 31, 2006).............:cecceeeeeeeees 16

BER. Rit. NG. 96-FSGZ C1 SBD)... cessicssvecccevcorevesenressseseeseves 3, 26

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Vii

TABLE OF AUTHORITIES

(continued)

Page

Peter Baker, U.S. Not Winning War in Iraq,

Bush Says for 1st Time:

President Plans to Expand Army, Marine

Corps to Cope with Strain of Multiple

Deployments,

Pe ey I ey BO veeticiccivciesiecsesnestnvincxiionie 16, 17

SD What, Fi, STIG I css cccesavvcnsstcessesovnes 3, 20, 26

]

Evelyn L. Lewis, M.D. respectfully petitions for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Federal Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App., infra,

la-15a) is reported at 458 F.3d 1372. The memorandum and

order of the Court of Federal Claims (Pet. App., infra, 16a-

29a) is reported at 67 Fed. Cl. 158.

JURISDICTION

The judgment of the Court of Appeals was entered on

August 14, 2006. A timely petition for rehearing was denied

on October 26, 2006. Petitioner filed a timely application for

an extension of time to file this petition on January 9, 2007.

The Chief Justice granted that application, extending the

time to file this petition until March 25, 2007. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULE INVOLVED

The Appointments Clause provides that the President

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

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

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

the Appointment of such inferior Officers, as they

may think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.

The Constitution also provides:

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

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

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

ernment and Regulation of the land and naval Forces

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

and proper for carrying into Execution the foregoing

Powers... .”

U.S. Const. art. I, § 8.

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

and the Secretary of the Navy’s regulations, SECNAVINST

1420.1A (1991), are reproduced in the Appendix, infra, at

56a-101a.

STATEMENT OF THE CASE

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

presented in the petition raises “significant questions con-

cerning the appointment process for military officers.” Dy-

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

(cited in Pet. App. at 30a-54a). Most significantly, this case

raises the constitutional question whether the plain language

of DOPMA — which provides that military officers who

have been nominated by the President and confirmed by the

Senate “shall be promoted” unless their names are removed

from the promotion list by the end of a prescribed statutory

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

137 (1803), and the Appointments Clause, U.S. Const. art. II,

§ 2, cl. 2. The Court of Appeals adopted a tortured interpre-

tation of DOPMA to avoid what it perceived to be constitu-

tional problems otherwise arising from DOPMA’s plain

meaning.

The Court should grant review to restore Congress’ clear

intent in enacting DOPMA and to preserve the rights of

thousands of military officers to be promoted in accordance

with a clear statutory scheme. Because the question pre-

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

sion below effectively creates a nationwide rule. Absent re-

view, the decision will therefore subject qualified military

officers to unwarranted denials or delays of promotion. It

will do so contrary to the plain language of DOPMA and

Congress’ equally clear goal of creating an efficient ap-

pointment process for the maintenance of the modern mili-

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

concern that Marbury, rather than simply describing the na-

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

an inflexible rule governing al] appointments over two cen-

turies later. Further percolation of the question presented is

neither necessary nor warranted. The Court should grant re-

view.

A. The Statutory Scheme.

This case concerns the meaning and constitutionality of

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

at 10 U.S.C. §61l et seg. (signed into law by President

Carter, with technical amendments signed by President

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

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

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

Rep. No. 96-1462, at 47 (1980). The House Committee on

Armed Services likewise recognized that DOPMA’s prede-

cessor statute “was drafted at a time when lawmakers could

not have foreseen the requirements for large, ready forces on

a[] sustained basis” and therefore did not address manage-

ment issues faced by the modern military. H.R. Rep. No. 96-

1462, at 9. DOPMA was a reaction to that problem, and,

according to the DOD, would “provide the services a more

equitable, effective, and efficient system to fill officer force

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

56.

DOPMA’s efficient and uniform system governing the

promotion of military officers is needed more today than it

was when DOPMA was enacted. Literally thousands of of-

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

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

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

herein refer to the prior version of the statute.

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

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

which governs all such promotions, ensures that they take

place when needed to ensure the readiness of our military in

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

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

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

port armies . . . [tlo provide and maintain a Navy . . . [and]

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

carrying into Execution the foregoing Powers.”).

DOPMA comprehensively prescribes the “appointment”

of military officers selected for promotion. It provides that

“fa]ppointments . . . shall be made by the President, by and

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

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

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

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

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

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

pointment process begins when the Secretary of the relevant

military service determines that it is necessary to convene a

selection board to recommend the selection of active-duty

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

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

mending officers for promotion, which is reviewed by the

Secretary of the appropriate service, who then forwards the

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

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

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

2 DOPMA governs promotions for members of the Army, Air

Force, Navy, and Marine Corps. The Secretary of the Navy’s imple-

menting regulations track the statute. See SECNAVINST 1420.1A.

Similar statutory schemes govern promotions of officers in the Coast

Guard, see 14 U.S.C. § 271 ef seq., and of reserve officers in the Army,

Air Force, Navy, and Marine Corps. See 10 U.S.C. § 14001 et seq.

taries are not required to accept a report of the selection

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

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

make comments and return a report to the Secretary con-

cerned or in certain circumstances may return the report to

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

(4).

Once a report is approved by all pertinent officials, the

Secretary of Defense transmits it to the President for ap-

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

remove the name of any officer recommended for promotion

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

The list of officers approved for promotion by the Presi-

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

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

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

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

promoted to the next higher grade when additional officers in

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

(a)(2) (emphasis added).

The Secretary of the relevant service thereafter sets the

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

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

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

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

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

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

forms officers of the projected effective date of their ap-

pointment and promotion by transmitting the confirmed

promotion list to appropriate personnel. If the Secretary

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

that date. Jd. § 741(d)(2).

The Secretary also has authority to delay the date of an

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

ple, the Secretary may delay the appointment if there is

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

morally, or professionally unqualified to perform the duties

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

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

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

under this subsection unless the officer has been

given written notice of the grounds for the delay,

unless it is impracticable to give such written notice

before the effective date of the appointment, in which

case such written notice shall be given as soon as

practicable.

Id. § 624(d)(3) (emphasis added).

During any period of delay, the Secretary has the author-

ity to decide whether to retain an officer on the promotion

list. Jd. §§ 624(d)(1), (d)(2); SECNAVINST 1420.1A

{ 23(e). On authority delegated by the President, the Secre-

tary may remove an officer’s name from the promotion list

during the statutory delay period. /d; see also Pet. App.

10a-lla (agreeing that the President can delegate both the

authority to appoint military officers and the authority to de-

cline to appoint officers) (collecting cases).

> DOPMA also provides that:

Under regulations prescribed by the Secretary concerned, the

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

swom charges against the officer have been received by an offi-

cer exercising general court-martial jurisdiction over the officer

and such charges have not been disposed of; [] an investigation

is being conducted to determine whether disciplinary action of

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

ficers has been convened under chapter 60 of this title to review

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

or State court is pending against the officer.

Id. § 624(d)(1).

DOPMA also creates a maximum period of delay of

eighteen months from “the date on which the officer other-

wise would have been appointed.” 10 U.S.C. § 624(d)(4).

At the end of that eighteen-month period, unless the officer’s

name has first been removed from the promotion list, that

officer is unambiguously promoted under the statute. See id.

§ 624(a)(2) (“Except as provided in subsection (d) [the delay

provision], officers on a promotion list for a competitive

category shall be promoted to the next higher grade when

additional officers in that grad and competitive category are

needed.”) (emphasis added). The officer is likewise formally

appointed on that date. Id. § 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 otherwise

would have been appointed unless the Secretary concerned

specifies a further period of delay. An officer’s appointment

may not be delayed . . . more than 18 months after the date

on which such officer would otherwise have been ap-

pointed.”) (emphases added); see also id. § 624(b)(2) (“[t]he

date of rank of an officer appointed to a higher grade under

this section is determined” by the Secretary under § 741(d))

(emphasis added).

The Secretary’s decision to set an effective appointment

date and leave the officer’s name on the promotion list

throughout the eighteen-month period, therefore, is the only

post-confirmation Executive Branch action required to effec-

tuate the appointment of an officer to the next permanent

grade. DOPMA contemplates that the Secretary’s inaction at

the conclusion of the eighteen-month period constitutes the

exercise of Executive discretion in favor of appointment.

See id. § 624(a)(2) (“Except as provided in subsection (d)

[the delay provision], officers on a promotion list for a com-

petitive category shall be promoted to the next higher grade

when additional officers in that grade and competitive cate-

gory are needed.”) (emphasis added). The historical record

confirms that the Executive Branch fully understands this

operation of the statute. Memoranda from Joseph Califano, a

special assistant to President Lyndon B. Johnson, advised

President Johnson to take action on the promotion of certain

officers prior to their projected promotion dates or those of-

ficers would be “automatically appointed” under DOPMA’s

predecessor statute. See JA 120-22.* And as explained be-

low, the Government has more recently conceded in litiga-

tion conducted in the Court of Federal Claims that, absent

the prior removal of an officer’s name from the promotions

list, appointments are effectuated at the end of DOPMA’s

prescribed statutory period as a matter of course.”

* Citations to the “JA” herein refer to the Joint Appendix filed in the

Court of Appeals. The memoranda to President Johnson were obtained

from the Lyndon Baines Johnson Library and Museum. See, e.g., JA

121, Dec. 16, 1965 Mem. from Joseph Califano to Pres. Johnson (“Based

on these circumstances it is recommended that you remove these officers

from the promotion list on the ground that they are not qualified for pro-

motion. [Redacted] will be automatically promoted on December 20 and

[redacted] December 18 unless you act before these dates.”) (redactions

in original); JA 122, Feb. 10, 1966 Mem. from Joseph Califano to Pres.

Johnson (“Unless you take the recommended removal action before Feb-

ruary 15, 1966 [redacted] will be automatically promoted.”) (redaction in

original); see also JA 120, Dec. 13, 1965 Mem. from James Cross for

Joseph Califano (“Presidential approval for the withdrawal of [officers’]

names will be necessary in the case of Lieutenant [redacted] before 18

December and for Captain [redacted] before 20 December. These are the

dates when the officers complete the service required for advancement to

the next higher permanent grade.”) (redactions in original).

> Moreover, after an officer is promoted, the President and the Ser-

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

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

President may vacate promotions to Brigadier General and Rear Admiral

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

(providing for dismissal and other sanctions pursuant to the Uniform

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

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

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

officer should be retained on active duty).

B. Factual Background.

The petitioner, Evelyn L. Lewis, M.D., entered active

duty in the United States Navy in 1983. She was promoted

on schedule to the rank of Commander and was selected on

schedule for promotion to the rank of Captain. The President

nominated her to that rank on April 21, 1999. See 145 Cong.

Rec. $4068, S4069 (daily ed. Apr. 21, 1999). She was con-

firmed by the Senate on June 30, 1999, id. at $7966, S7967

(daily ed. June 30, 1999), and was given a projected promo-

tion date of August 1, 2000. JA 202.

On June 27, 2000, however, Dr. Lewis was advised that

her promotion had been delayed because it had been reported

that she did not possess a valid, unqualified state medical

license recognized by the Navy, and that consideration was

being given to removing her name from the promotion list.°

JA 149. On September 7, 2000, she was informed that, for

the same reason, her promotion was being delayed for up to

eighteen months, JA 207. During this period, several of her

supervising Officers wrote letters in support of her efforts to

demonstrate that she was professionally qualified and should

be promoted to Captain even without an unqualified license.’

* This occurred despite the fact that, in May 2000, a Naval Board of

Inquiry determined that Dr. Lewis had “not committed substandard per-

formance of duty as evidenced by a failure to maintain the required pro-

fessional licensure to practice medicine,” and that she should not be ad-

ministratively separated from the Navy. JA 147-48.

” See, e.g., JA 155-56, July 17, 2000 letter from Peter D. Kent, Cap-

tain, Medical Corps, United States Navy, Clinical Investigation Program

(“Very clearly, your demonstrated professionalism makes you a substan-

tial asset to the Navy’s medical department. Your accomplishments were

appropriately recognized by your promotion selection board.”); JA 157-

58, July 11, 2000 letter from Warren A. Jones, MD, Captain, Medical

Corps, United States Navy, Director (“I have had the pleasure of sitting

on Selection Boards and in those efforts have seldom seen a record of a

Naval Officer with the outstanding skills CDR Lewis possesses.”).

Despite having known about the reasons for the delay of

Dr. Lewis’ promotion for over two years (and having re-

ceived documentation, including supporting letters from su-

pervising officers, demonstrating that she did not need an

unqualified medical license to serve as a Captain in the Navy

Medical Corps), by February 1, 2002, the last date to which

Dr. Lewis’ promotion could have been delayed under

DOPMA, her name had not been removed from the promo-

tion list. It was not until May 10, 2002, ninety-nine days af-

ter the last possible date of promotion delay, that the Secre-

tary of the Navy removed her name from the promotion list.

JA 238-39, 247. Dr. Lewis retired from the Navy as a deco-

rated officer effective January 1, 2004. JA 259-60.

C. Procedural History.

1. On September 26, 2000, Dr. Lewis filed a complaint

in the United States District Court for the District of Colum-

bia alleging that the Secretary of the Navy’s action in delay-

ing her promotion was arbitrary and capricious because her

promotion was delayed pursuant to a DOD policy memoran-

dum which misinterpreted 10 U.S.C. § 1094, and which did

not apply to her because she did not provide direct patient

care requiring an unrestricted license. The District Court

granted the government’s motion to dismiss. Lewis v. Rums-

feld, 154 F. Supp. 2d 56 (D.D.C. 2001).

While Dr. Lewis’ appeal from that decision was pending,

she applied to the Board for Correction of Naval Records

(“BCNR”) for a determination that she had been promoted to

the rank of Captain because the Secretary had not removed

her name from the promotion list before the last possible

date of delay. Her application was denied on February 10,

2003. JA 254-55.

On April 30, 2003, the Court of Appeals for the District

of Columbia Circuit issued a per curiam decision granting

Dr. Lewis’ motion to remand and, to the extent she sought to

have her case transferred to the Court of Federal Claims, in-

structing her to amend her complaint to include a damages

claim. Lewis v. Rumsfeld, No. 01-5295, 2003 WL 21018861

(D.C. Cir. Apr. 30, 2003). Dr. Lewis did so, and the District

Court transferred her case to the Court of Federal Claims.

See Lewis v. Rumsfeld, No. 1:00CV02292 (RMU) (D.D.C

June 2, 2003).

2. In the Court of Federal Claims, Dr. Lewis again al-

leged that the regulation regarding licensing did not apply to

her and further argued that, under the clear language of

DOPMA, she was promoted to the rank of Captain and was

therefore was entitled to back pay for the period she would

have been a Captain while still on active duty (August 1,

2000 to December 31, 2003), as well as the retired pay of a

Captain.®

At the time the case was transferred to the Court of Fed-

eral Claims, a decision of that court fully supported Dr.

Lewis’ reading of DOPMA. Rolader v. United States, 42

Fed. Cl. 782 (1999), held that an officer whose name was

never removed from the promotion list before the last possi-

ble date of statutory delay had been “promoted” under

DOPMA — precisely the reading Dr. Lewis asserted in her

complaint. Indeed, the Government conceded the point in

Rolader. See id. at 786-87 (stating that “[t]he Government

concedes that if no recommendation for removing plaintiff's

* Under DOPMA, if no action is taken during a promotion delay and

the officer’s name is retained on the promotion list, then “the officer shall

upon ... 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.” 10 U.S.C. § 624(d)(2). Dr. Lewis therefore claimed

that she was entitled to back pay and retirement pay effective back to the

date she was promoted to Captain under this provision and the Military

Pay Act, 37 U.S.C. § 204. The Court of Federal Claims ne that it had

Tucker Act jurisdiction over Dr. Lewis’ case because she ‘had properly

invoked a money-mandating statute in the Military Pay Act. Pet. App.

21a-22a. ;

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

sion below will therefore wrongly inject uncertainty into an

area where certainty and predictability are paramount; thou-

sands of officers proceed through the military promotions

system each year, and the efficiency of this system is integral

to the national defense effort. And there is no chance that

the Federal Circuit will correct its own error in interpreting

DOPMA: twice since Dysart, including in the decision be-

low, the Court of Appeals has reaffirmed that Petitioner’s

reading of DOPMA violates Marbury and the Appointments

Clause. The Court should grant the petition.

I. THE QUESTION PRESENTED IS IMPORTANT

AND RECURRING.

A. The Question Is Recurring.

Literally thousands of military appointments take place

each year. From January 3 through September 30, 2006

alone, Congress considered 7,800 Air Force nominations,

8,855 Army nominations, 6,968 Navy nominations, and

1,293 Marine Corps nominations. See 152 Cong. Rec.

D1088 (daily ed. Nov. 9, 2006).'° DOPMA governs the ap-

pointment of all such military officers. It is hardly surpris-

ing, then, that the question presented here is a recurring one.

To the contrary, it has repeatedly been the subject of litiga-

tion in the Court of Federal Claims and the Federal Circuit.

See, e.g., Pet. App. la-15a; Dysart, 369 F.3d 1303; Rolader,

42 Fed. Cl. 782; see also Law v. United States, 11 F.3d 1061

(Fed. Cir. 1993) (raising same issue under statute governing

Coast Guard promotions).

Indeed, even more recently than the decision below, the

Federal Circuit rejected a cross-appeal from an officer con-

tending that he had been promoted under DOPMA after his

'° Of these, the following nominees were confirmed: 7,783 in the Air

Force; 8,831 in the Army; 6,694 in the Navy; and 1,289 in the Marine

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

appointment had been improperly delayed even though the

Court of Federal Claims initially agreed, before reconsider-

ing its decision in light of Dysart, that the officer had been

promoted under the statute. See Barnes v. United States, 473

F.3d 1356, 1363 (Fed. Cir. 2007) (“Although he argues that

it was wrongly decided, Barnes himself recognizes that this

panel is bound to follow Dysart unless and until it is over-

turned by the court sitting en banc. . . . Nor are we per-

suaded, as requested, to propose en banc review ourselves.”);

see also Barnes v. United States, 66 Fed. Cl. 497 (2005) (va-

cating prior opinion, 57 Fed. Cl. 204 (2003), that had held

Barnes was promoted under DOPMA, in light of Dysart),

rev'd, 473 F.3d 1356.

These questions also arise before the BCNR. See, e.g.,

Amicus Br. of Dr. Lewis, et al., in Dysart v. United States,

2003 WL 24305578, at *3. Because record correction pro-

ceedings are covered by the Privacy Act, 5 U.S.C. § 552a,

the exact number of these cases pending before the BCNR

and its sister boards in other military departments is un-

known.

B. The Question Is Important.

The Federal Circuit acknowledged that these cases “pre-

sent[] significant questions concerning the appointment proc-

ess for military officers.” Dysart, 369 F.3d at 1306. For

several reasons, the Court of Appeals is correct on that score.

First, this case implicates the interpretation of an impor-

tant federal statute governing the appointment of thousands

of military officers every year. In both this case and Dysart,

the Federal Circuit disguised what is essentially a constitu-

tional holding that DOPMA violates Marbury and the Ap-

pointments Clause as a holding that DOPMA’s plain terms

mean something other than what they say. The Court of Ap-

peals’ interpretation cannot survive serious review. Properly

understood, DOPMA provides that Dr. Lewis was “ap-

pointed” to the next higher rank when her name was not re-

moved from the promotions list by the end of the statutory

period. The Court of Appeals’ contrary holding not only

misreads the statute but places military officers in limbo by

imposing a system under which the President or his delegate

can delay military promotions indefinitely despite the stat-

ute’s plain language.

Second, this case raises core questions about the separa-

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

ing an efficient military appointment process. The appoint-

ment of military officers is unquestionably an area in which

Congress has a significant interest in light of its broad consti-

tutional powers to maintain a navy and regulate other mili-

tary affairs. See U.S. Const. art. 1, § 8 (Congress has “the

power to . . . raise and support Armies; [t]o provide and

maintain a Navy; [t]o make Rules for the Government and

Regulation of the land and naval forces,” and to “make all

Laws which shall be necessary and proper for carrying into

Execution the foregoing powers... .”); see also 125 Cong.

Rec. 34209 (1979) (statement of Sen. John Stennis) (recog-

nizing that the “[Armed Services] committee is charged with

the responsibility of making rules for the government and

regulation of our military forces” and that DOPMA “goes to

the very heart of that congressional responsibility with our

military system”’).

In fact, Congress’ interest in maintaining an efficient sys-

tem for appointments is at an apex today given the current

size of the officer corps, the need for the deployment of offi-

cers at the appropriate rank and grade levels all around the

world, and current plans to expand the size of the military.

See Department of Defense: Active Duty Military Personnel

by Rank/Grade, available at

http://siadapp.dior.whs.mil/personnel/MILIT AR Y/rg0612.pd

f (Dec. 31, 2006) (last visited Mar. 22, 2007) (stating that, as

of Dec. 31, 2006, there were 221,726 active duty officers in

the armed forces); see also, e.g., Peter Baker, U.S. Not Win-

ning War in Iraq, Bush Says for 1st Time: President Plans to

Expand Army, Marine Corps to Cope with Strain of Multiple

Deployments, Wash. Post, Dec. 20, 2006, at Al. Despite the

fact that, in enacting DOPMA, Congress was legislating in

an area involving its core powers, the Federal Circuit per-

ceived DOPMA as encroaching on Executive power. It did

not even address the possibility that DOPMA is instead a

balanced approach to military promotions that respects the

appointments system and also carries out Congress’ duty to

provide for and regulate the armed forces. ,

Third, this case raises the issue whether Marbury created

an inflexible constitutional rule regarding what particular

Executive action is necessary to effectuate any and all ap-

pointments under the Constitution. The Federal Circuit

based its analysis on a flawed reading of Marbury. The Fed-

eral Circuit did not grapple with the question whether Con-

gress could vary in any way the way in which the steps in the

appointment process are accomplished. The Court should

grant review to determine whether Marbury’s description of

the appointment at issue in that case in fact created a baseline

constitutional rule governing all appointments over two cen-

turies later.

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

peals’ Decision Creates A Nationwide Rule Gov-

erning The Appointment Of Military Officers.

Claims like Dr. Lewis’ are litigated almost exclusively in

the Federal Circuit, because it is the only court with jurisdic-

tion to hear appeals regarding officers’ claims for back pay

and retirement pay at the level applicable to the ranks to

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

§§ 1295(a)(2), (3) (vesting the Federal Circuit with exclusive

jurisdiction over appeals from district court decisions regard-

ing claims for money damages against the United States); see

also United States v. Hohri, 482 U.S. 64, 72 (1987) (stating

that Tucker Act claims for damages of more than $10,000

against the United States “may be brought only in the United

States Claims Court” and “are appealable only to the Federal

Circuit. .. . Claims for less than $10,000 . . . may be brought

either in a federal district court or in the United States

Claims Court. These claims . . . also are appealable only to

the Federal Circuit”) (citing 28 U.S.C. §§ 1491(a)(1),

1346(a)(2), 1295(a)(2), (3)).

Two judges of the Court of Federal Claims have read

DOPMA to provide for military promotions without raising

any constitutional issues. See Barnes, 57 Fed. Cl. at 218

(holding that the Navy’s delay in removing Lieutenant Bar-

nes from the promotion list until after the statutory delay pe-

riod had expired “accomplished his promotion”), opinion

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

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

cause officer’s name was not removed from promotion list

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

as a matter of law).

The Federal Circuit decided this case solely based on its

prior holding in Dysart and denied rehearing. See Pet. App.

10a (resolving Dr. Lewis’ argument that she had been pro-

moted because her name was not removed from the promo-

tion list by the last possible date of statutory delay based on

Dysart because Dysart was binding on the panel and “Lewis’

claim is not distinguishable”); Pet. App. 55a. Even more re-

cently, the Federal Circuit again refused to reconsider Dy-

sart. See Barnes, 473 F.3d at 1363. The Federal Circuit has

thus conclusively demonstrated that it will not revisit this

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

facto nationwide rule.

J. THE DECISION BELOW WRONGLY SUBJECTS

THOUSANDS OF QUALIFIED MILITARY OFFI-

CERS TO UNWARRANTED PROMOTION DENI-

ALS AND DELAYS.

A. DOPMA’s Plain Language Provides For Ap-

pointment When An Officer Is Retained On The

Promotion List.

The Federal Circuit held that Dr. Lewis was not pro-

moted even though her name remained on the promotion list

after the last date of statutory delay had expired because

““the language of [section 624] does not provide for auto-

matic appointment... .’” Pet. App. 10a (alteration in origi-

nal) (quoting Dysart, 369 F.3d at 1313). Rather, the Court

held, “the statute provides that appointments are made ‘by

the President, by and with the advice and consent of the Sen-

ate.” Dysart, 369 F.3d at 1313 (quoting 10 U.S.C.

§ 624(c)). However, reading DOPMA as a whole compels

the conclusion that a military appointment is effected after

the specific steps set forth in the statute have taken place.

The promotion process under DOPMA is perfectly obvi-

ous. As already explained, the relevant statutes provide for

nomination of an officer by the President, 10 U.S.C.

§§ 618(c)(1), 629(b), consideration of nominations by the

Senate, id. § 629(b), and, after confirmation, action by the

Secretary to project a promotion date for the officer, id.

§§ 624(b), 741(d), or to delay the officer’s “appointment un-

der this section” (an action that carries with it the possibility

that a confirmed officer’s name will be removed from the

promotion list and that he or she will therefore never be ap-

pointed). Jd § 624(d) (emphasis added). Thus, under

DOPMA, an officer’s appointment to the next highest rank

and grade occurs after confirmation, on the projected effec-

tive date of promotion given the officer by the Secretary of

his or her service, unless the Secretary takes some action to

delay the appointment and remove the officer from the pro-

motion list.

This understanding of the military appointments process

is the only sensible way to read the statute. As already ex-

plained, the Executive Branch is aware of DOPMA’s provi-

sions, see JA 120-22 (Mem. from Joseph Califano to Pres.

Johnson), and, indeed, the Government has conceded in prior

litigation that DOPMA operates exactly as Dr. Lewis asserts

it does. Therefore, when the President nominates an officer

for promotion, he does so with the understanding that the

officer will be appointed after Senate confirmation absent

some action by the Secretary of the relevant service to delay

the appointment and potentially remove the officer’s name

from the promotion list during the statutorily-defined period.

As such, the appointment phase is hard-wired into the nomi-

nation process for officers whose appointments are not de-

layed at the discretion of the Secretary.

The Federal Circuit ignored this straightforward process

in holding that DOPMA does not provide for appointments.

In particular, it utterly disregarded the particular provisions

of DOPMA applicable to Dr. Lewis’ case, i.e., those govern-

ing promotions delayed by the Secretary.'' DOPMA explic-

itly states that “[u]nder regulations prescribed by the Secre-

tary concerned, the appointment of an officer under this sec-

'' As discussed above, the Federal Circuit focused only on the part

of DOPMA restating the requirements of the Appointments Clause. This

approach runs afoul of this Court’s directive that “[s]tatutory construction

... iS a holistic endeavor.” United Sav. Ass'n of Tex. v. Timbers of In-

wood Forest Assocs., Ltd, 484 U.S. 365, 371 (1988). The Federal Cir-

cuit likewise engaged in a piecemeal reading of DOPMA’s legislative

history, relying solely on snippets reflecting the constitutionally-

mandated premise that appointments are made by the President with the

advice and consent of the Senate, see Dysart, 369 U.S. at 1314, while

ignoring the overarching purpose of the statute to modernize military

personnel laws and to “[p]rovide common law for the appointment of

Regular officers.” S. Rep. 96-375, at 76 (emphasis added).

tion may be delayed... .” 10 U.S.C. § 624(d)(1) (emphases

added); § 624(d)(2) (same). It further states that “[t]he ap-

pointment of an officer may not be delayed under this sub-

section 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.”

Id. § 624(d)(3) (emphases added). These provisions would

be meaningless if officers had no expectation of appointment

unless — as would be the case under the Federal Circuit’s

view — the President took some additional action, beyond

the steps set forth in DOPMA, at some unknown future time.

Nothing in the statute (or the Court of Appeals’ decision)

remotely indicates what that action might be, or when it

might take place. The result is manifest uncertainty.

Under a reading that ensures certainty, by contrast, the

language of the delay provisions instead assumes that an ap-

pointment will occur if the Secretary of the relevant service

does not invoke them, and, if they are invoked, that an ap-

pointment will not occur unless the officer concerned is “re-

tained on the promotion list.” Jd. §§ 624(d)(1), (2).'? There

would likewise be no reason to require that an officer be in-

'? The subsection of the statute dealing with delays due to pending

disciplinary or other proceedings against an officer provides that:

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

charges against the officer are withdrawn or dismissed, if the of-

ficer is not ordered removed from active duty 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 paragraph (2) the officer

shall be retained on the promotion list... .

Id. § 624(d)(1).

The more general delay provision states: “If the Secretary concerned

later determine, ‘sat the officer is qualified for promotion to such

grade, the offic« shall be retained on the promotion list... .” /d.

§ 624(d\(2).

formed of any delay before the effective date of his or her

appointment unless the officer would expect to be promoted

on that date absent notification to the contrary. /d

§ 624(d)(3).

The history of the notification provision confirms this

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

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

delayed under this subsection unless the officer has been

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

guage was amended in 1981, when Congress added the

phrase “unless it is impracticable to give such written notice

before the effective date of the appointment, in which case

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

Defense Officer Personnel Management Act Technical Cor-

rections Act, Pub. L. No. 92-22 § 4(d)(3)(D), 95 Stat. 127.

The House Report recognized that under the language of the

original provision, an officer might be promoted simply be-

cause notice of a delay had not been transmitted to him or

her in a timely fashion.”

The provision of DOPMA that the Federal Circuit

pointed to in reaching the opposite conclusion is simply a

restatement of the language of the Appointments Clause.

Thus, although the Federal Circuit couched its holding in

terms of statutory construction, the true question here is

whether DOPMA is inconsistent with Marbury and the Ap-

pointments Clause. As we now explain, it is not.

"3 See H.R. Rep. No. 97-14], at 14 (1981) (“This amendment recog-

nizes that information calling into question the qualifications of an offi-

cer for promotion may be revealed only shortly before the projected date

of the promotion and that, in such cases, the officer may not be reasona-

bly available (e.g., on a weekend, while on leave or absent without leave)

to receive written notice that the promotion is being delayed.”).

B. DOPMA Does Not Violate The Appointments

Clause.

The Federal Circuit’s tortured statutory construction was

colored by the underlying premise of its decision — namely,

the Court’s belief that the statute raised Appointments

Clause problems because: (1) the President has absolute dis-

cretion regarding whether to appoint an officer who has been

confirmed to the next highest rank and grade; and (2) the

“shall be promoted” language of the statute improperly cab-

ins that discretion.'* See, e.g., Pet. App. 10a (noting that in

Dysart the court “further held that the statute could not con-

stitutionally provide for automatic appointment because

‘military officers must be appointed pursuant to the constitu-

tional process, which requires appointments at the discretion

of the President, not automatic appointments pursuant to

statute’”’) (quoting Dysart, 369 F.3d at 1313, 1315); Dysart,

369 F.3d at 1314 (stating that “[pJrotecting the role of the

President in the appointment process from legislative en-

croachment was in fact one of the goals of the Constitutional

Convention”); see also Dysart, 369 F.3d at 1316 (“The Con-

stitution contemplates that, after confirmation, the President

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

Circuit’s view of the Appointments Clause, therefore, no

'* To support this conclusion, the Federal Circuit pointed to language

in DOPMA providing that “‘[t]he President may remove the name of any

officer from a list of officers recommended for promotion by a selection

board convened under this chapter.’” Dysart, 369 F.3d at 1317 (quoting

10 U.S.C. § 629(a)). As the Court of Federal Claims correctly observed,

however, this language cannot be read in isolation but must be consid-

ered in the context of the overall statutory scheme. See Rolader, 42 Fed.

Cl. at 786 (noting that the Army and the Navy “construe sections 624 and

629 as operating in tandem, so that the eighteen month outer limit on

delay precludes removal of a name after that point”) (citing SECNAV-

INST 1420.1A $23 (1991); Army Regulation 624-100, Promotion of

Officers on Active Duty, Update, ch. 2-10(b) (1984)).

limits may be placed on the President’s discretion to appoint

or choose not to appoint officers.

That view is incorrect. This Court has held that the Ap-

pointments Clause is violated when Congress enlarges its

own power in the appointments process. For example, Con-

gress ran afoul of the Appointments Clause when it vested

the power to make appointments in itself. See Buckley v.

Valeo, 424 U.S. 1 (1976) (holding that Congress could not

constitutionally provide for appointment of members of the

Federal Election Commission by the President pro tempore

«of the Senate and the Speaker of the House). DOPMA does

not involve any similar expansion of congressional power.

The only power Congress itself has under the statute is the

Senate’s power to confirm (or choose not to confirm) mili-

tary officers who have been nominated by the President. Cf

Morrison v. Olson, 487 U.S. 654, 694 (1988) (upholding in-

dependent counsel statute and observing that the “case [did]

not involve an attempt by Congress to increase its own pow-

ers at the expense of the Executive Branch”).

Unlike the appointments scheme at issue in Buckley,

DOPMA amply protects the constitutionally mandated role

of the Executive in the appointment process. The President

makes the decision regarding which officers to nominate for

promotion and has the sole power to remove officers’ names

from the list recommended by the selection board. 10 U.S.C.

§ 629(a). The Service Secretary, to whom even the Federal

Circuit agreed the appointment power may be delegated, has

a period of time from an officer’s confirmation to the pro-

jected promotion date during which he or she can determine

whether an officer’s appointment should be delayed. (In Dr.

Lewis’ case, the gap between the date of her confirmation

and her projected promotion date was over a year.)

The Secretary’s power to delay an appointment is quite

broad; in addition to being able to delay an appointment if

the officer is subject to court-martial, disciplinary, or other

similar proceedings, the Secretary may delay an officer’s ap-

pointment “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)(2). If an

officer’s appointment is not delayed, that implicitly reflects a

determination by the Secretary that it should go forward on

the projected date. The statute further provides the Secretary

with the discretion to ultimately remove an officer whose

appointment has been delayed from the promotion list such

that he or she would not be appointed. /d. § 624(d); see also

SECNAVINST 1420.1A § 23.

These statutory provisions demonstrate that, contrary to

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

maintain their discretion in appointments under DOPMA.

All that Congress has required throwgh the statute is that the

Executive power to appoint or decline to appoint military

officers be exercised within a reasonable time period — ei-

ther during the period between confirmation and the officer’s

projected promotion date or, in the case of officers like Dr.

Lewis whose promotions are delayed, before the expiration

of the delay period. The President and the Service Secretar-

ies still have the power to remove the officer or take other

actions against him or her. See, e.g., 10 U.S.C. §§ 625, 801,

1161(b), 1181, 1182. DOPMA’s reasonable time limitation

does not result in any significant decrease of Executive

power. Cf Bowsher v. Synar, 478 U.S. 714, 726 (1986)

(holding that under separation of powers principles, Con-

gress could not “reserve for itself the power of removal of an

officer charged with the execution of the laws except by im-

peachment’’).

Rather than violating the separation of powers, DOPMA

simply strikes a necessary balance between the President’s

power in the area of appointments and Congress’ core consti-

tutional power to provide for and regulate the military. See,

e.g., 126 Cong. Rec. 30781 (1980) (statement of Sen. Sam

Nunn) (“[W]e must recognize the responsibilities of Con-

gress and the President in officer management. We need an

officer system controlled by Congress which will also give

the President, as Commander in Chief, as much management

flexibility as he can [] constitutionally be granted ... .”).

This Court “ha{s] never held that the Constitution requires

that the three branches of Government operate with absolute

independence.” Morrison, 487 U.S. at 693-94 (internal quo-

tation marks omitted). When proposing and enacting

DOPMA, the DOD and Congress both recognized the need

for an efficient, modern process to manage the high volume

of military promotions in today’s military. See S. Rep. No.

96-375, at 75; H.R. Rep. No. 96-1462, at 9, 47, 56. The

Act’s reasonable time limitation on the exercise of the ap-

pointment power is merely a mechanism to ensure that this

need is met, and the time limitation thus falls squarely within

Congress’ core powers. See U.S. Const. art. I, § 8.

If there were any doubt about this conclusion, it is re-

solved by the fact that Congress has greater flexibility in the

appointment of inferior officers like Dr. Lewis.'” See, e.g.,

Weiss, 510 U.S. at 186-87 (Souter, J., concurring). In par-

ticular, Congress may vest the appointment of these officers

in the President alone or in other government entities. See

'S There are thousands of naval captains (or their equivalent, colo-

nels) in the military, all of whom are removable, and none of whom qual-

ify as principal officers. See Weiss v. United States, 510 U.S. 163, 182

(1994) (Souter, J., concurring) (“Military officers performing ordinary

military duties are inferior officers, and none of the parties to this case

contends otherwise. Though military officers are appointed in the man-

ner of principal officers, no analysis permits the conclusion that each of

the more than 240,000 active military officers is a principal officer.”)

(internal citations omitted); cf Morrison, 487 U.S. at 671-72 (holding

that independent counsel was an inferior officer because, inter alia, she

was “subject to removal by a higher Executive Branch official,” she had

no authority to formulate policy for the Government or the Executive

Branch, and her office was of limited jurisdiction and tenure).

U.S. Const. art. II, § 2, cl. 2 (“[T]he 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.”). The Federal Circuit recognized

that Congress may vary the appointments process for such

officers, see Dysart, 369 F.3d at 1314, but utterly failed to

address the import of this fact for the appointment of military

officers.

It is true that Congress has not chosen to vary the ap-

pointment process for most military officers. However,

given its greater power to disregard the role of the President

in the appointments process for inferior officers altogether, it

follows that Congress must, at the very least, have the flexi-

bility to set up a scheme for the appointment of such officers

that ensures that all the constitutionally required steps of the

military promotion process occur as efficiently as possible.

That is all that it has done with the current statutory frame-

work.

C. DOPMA Does Not Violate Marbury.

Marbury provides that an appointment is made “when it

is shewn that [the President] has done everything to be per-

formed by him.” 5 U.S. at 157. It does not create any rule,

much less a constitutional rule, regarding precisely what

kind of action is required for that showing. In Marbury, the

President’s signature on the commission was the executive

act required to effectuate the appointments of justices of the

peace in the District of Columbia, the position for which

Marbury had been nominated and confirmed. /d. at 150-51.

Accordingly, Marbury’s appointment was effective when

signed; delivery of the appointment to him was not required.

DOPMA simply creates a modern-day version of this sce-

nario. When an officer’s projected promotion date, or the

last permissible date of delay, comes and goes without re-

moval of the officer’s name from the promotion list, the Ex-

ecutive has effectively signed the appointment.

The Federal Circuit was wrong to assume that Marbury

requires the appointments process to occur in a particular

manner.'° Marbury dealt with a particular appointment proc-

ess; it did not foreclose the possibility that other processes

could also satisfy the requirements of the Appointments

Clause. Dr. Lewis and other officers like her are nominated

by the President under a statute that the President under-

stands will make a confirmed officer’s appointment effective

unless his or her name is removed from the promotion list.

Thus, the President’s nomination and failure to take action to

remove an officer from the promotion list within the requi-

site time frame is the showing Marbury requires — that the

President “has done everything that is to be performed by

him.” 5 U.S. at 157; see also id. (“[T]his [appointment]

power has been exercised when the last act, required from

the person possessing the power, has been performed.”).

‘© Under the Federal Circuit’s interpretation of DOPMA, giving the

President unfettered discretion in appointments, Congress would never

be able to craft efficient appointments schemes and the statutes currently

providing similar mechanisms for appointments in the Coast Guard and

the reserve officer corps, see 14 U.S.C. § 271 ef seg. and 10 U.S.C.

§ 14001 et seg., would be unconstitutional. Moreover, taking the Federal

Circuit’s position to its logical extreme, Congress would never be able to

require that military officers have any particular qualifications for their

positions as the Executive Branch would have unlimited decision-making

power regarding who is nominated and appointed to be an officer. As

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

Pet. App. 7a (recognizing that “Congress can restrain the President's au-

thority to appoint particular classes of persons to officer positions or bar

appointment unless particular procedures are followed”).

CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

EUGENE R. FIDELL WALTER E. DELLINGER, III

FELDESMAN TUCKER LEIFER (Counsel of Record)

FIDELL LLP MATTHEW M. SHORS

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

Second Floor O’MELVENY & MYERS LLP

Washington, D.C. 20036 1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

Attorneys for Evelyn L. Lewis, M.D.

March 23, 2007

APPENDIX

APPENDIX A

Evelyn L. LEWIS, Plaintiff-Appellant,

UNITED STATES, Defendant-Appellee.

No. 05-5155.

United States Court of Appeals,

Federal Circuit.

Aug. 14, 2006.

Before RADER, Circuit Judge, CLEVENGER, Senior

Circuit Judge, and DYK, Circuit Judge.

DYK, Circuit Judge.

Dr. Evelyn Lewis (“Lewis”) appeals the decision of the

Court of Federal Claims denying relief from the Secretary of

the Navy’s decision to delay her promotion and subsequently

to remove her name from a military promotion list. Lewis

urges that she was promoted as a matter of law under 10

U.S.C. § 624, and also that the decision of the Board of Cor-

rection for Naval Records (“BCNR”), sustaining the Secre-

tary’s actions denying her promotion, was based on an incor-

rect interpretation of 10 U.S.C. § 1094(a)(1). We hold that

Lewis’ claim that she was promoted as a matter of law is

barred by our decision in Dysart v. United States, 369 F.3d

1303 (Fed. Cir. 2004), and that the BCNR’s decision deny-

ing her request for a correction of her personnel record was

based on a proper understanding of 10 U.S.C. § 1094(a)(1).

We therefore affirm the decision of the Court of Federal

Claims.

BACKGROUND

At all relevant times, Lewis was an active-duty Com-

mander in the Navy Medical Corps, and held a “restricted”

Oklahoma medical license that limited her practice of medi-

cine to federal facilities. On April 21, 1999, the President

nominated Lewis for promotion to the rank of Captain. On

June 30, 1999, the Senate confirmed her nomination. How-

ever, she could not achieve the rank of captain without being

appointed to the position by the President. Dysart v. United

States, 369 F.3d 1303, 1315 (Fed. Cir. 2004).

Prior to October 1, 1999, 10 U.S.C. § 1094 required all

“health-care professionals” in the Department of Defense

(“DoD”) “provid[ing] health care independently as ... health-

care professional[s]” to carry a “current license.” 10 U.S.C.

§ 1094(a)(1) (1994). It defined “health-care professional” as

“person{s] [including physicians] providing direct patient

care.” Jd. at § 1094(d)(2). On October 1, 1999, a new sen-

tence was added to section 1094(a)(1), which provided that

“(iJn the case of a physician, the physician may not provide

health care as a physician under this chapter unless the cur-

rent license is an unrestricted license...” 10 U.S.C. §

1094(a)(1) (2000).

In December 1999, the Navy Bureau of Medicine and

Surgery directed Lewis to show cause as to whether she

should be retained in the Navy, because she did not have an

unrestricted medical license. On May 2, 2000, a Navy Board

of Inquiry (BOT) conducted an investigation and found that

separation was not warranted because Lewis “ha[d] not

committed substandard performance of duty as evidenced by

a failure to maintain the required professional licensure to

practice medicine.” J.A. at 147. Nonetheless, on June 27,

2000, the Chief of Naval Personnel determined that Lewis

“may not be professionally qualified for permanent promo-

tion” because she lacked “a valid state medical license rec-

ognized by the Navy,” and notified Lewis that her appoint-

ment would be delayed pending a final decision by the Sec-

retary of the Navy. J.A. at 149.

On September 26, 2000, Lewis filed a complaint in the

United States District Court for the District of Columbia as-

serting that the action delaying her promotion was arbitrary

and capricious. In an August 15, 2001, decision the court

granted the government’s motion to dismiss, holding the

claim was non-justiciable and Lewis had failed to exhaust

administrative remedies before the BCNR. See Lewis v.

Rumsfeld, 154 F.Supp.2d 56, 57 (D.D.C.2001). Lewis ap-

pealed to the United States Court of Appeals for the District

of Columbia Circuit on August 21, 2001.

Lewis’ situation continued to evolve while her case was

pending before the District of Columbia Circuit.

Section 624(a) of title 10, a provision of the Defense Of-

ficer Personnel Management Act (“DOPMA”), provides that

“(e]xcept as provided in subsection (d), officers on a promo-

tion list for a competitive category 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)

(2000). Section 624(d) provides that “[a]n officer’s ap-

pointment may not be delayed... more than 18 months after

the date on which such officer would otherwise have been

appointed....” 10 U.S.C. § 624(d)(4) (2000). Under this pro-

vision, the last date to which Lewis’ appointment could be

delayed was February 1, 2002. By this date, Lewis had nei-

ther been removed from the promotion list nor appointed.

On March 5, 2002, Lewis applied to the BCNR, seeking

a determination that she had been promoted to the rank of

Captain by operation of law.’ On May 10, 2002, after the

expiration of the 18-month period, the Secretary of the Navy

finally removed Lewis’ name from the promotion list. The

BCNR denied Lewis’ application for relief on February 10,

2003, holding that under Secretary of the Navy Instruction

(“SECNAVINST”) 1120.12A and the applicable DoD pol-

icy, “the Navy properly considered [Lewis] to be profession-

ally unqualified for promotion without an unrestricted li-

cense....” J.A. at 254. On March 31, 2003, Lewis requested

voluntary retirement from active duty, and the Secretary of

the Navy granted her request effective January 1, 2004.

On April 30, 2003, the District of Columbia Circuit is-

sued a decision remanding to the district court. In a per cu-

riam order, the court advised Lewis to seek leave of the dis-

trict court to amend her complaint to include a damages

claim, and to transfer the case to the Court of Federal

Claims. See Lewis v. Rumsfeld, No. 01-5296, 2003 WL

21018861 (D.C.Cir. Apr. 30, 2003). Lewis did so, and on

June 2, 2003, the district court granted her motion. The case

was transferred to the Court of Federal Claims.

In the Court of Federal Claims, Lewis alleged that she

was promoted to the rank of Captain as a matter of law by

operation of section 624(d). She also contended that she was

denied promotion based upon an erroneous interpretation of

' Section 1552 of title 10 gives the military secretaries power to correct

military records using civilian boards. It provides that “[t]he Secretary of

a military department may correct any military record of the Secretary’s

department when the Secretary considers it necessary to correct an error

or remove an injustice.” 10 U.S.C. § 1552(a)(2) (2000).

section 1094. She sought pay and allowances of a Captain

from August 1, 2000, to December 31, 2003, and the retired

pay of a Captain.

The government moved to dismiss, or in the alternative,

for judgment on the administrative record. Lewis v. United

States, 67 Fed.Cl. 158, 163 (2005). The Court of Federal

Claims (Judge Susan G. Braden) held that it had jurisdiction

over Lewis’ claim under the Tucker Act, 28 U.S.C. §

1491(a)(1) (2000), and the Military Pay Act, 37 U.S.C. § 204

(2000). Jd. at 160-61. While recognizing that “the merits of

a promotion determination are non-justiciable,” the court

held that Lewis’ claim was justiciable because “the court can

intervene ... to ensure that the [promotion] decision was

made in a proper procedural manner.” Jd. at 160. However,

the court held that under our decision in Dysart v. United

States, 369 F.3d at 1311-14, the President has complete dis-

cretion whether to appoint military officers. Lewis, 67 Fed.

Cl. at 163. Accordingly, the court granted the government’s

motion for judgment on the administrative record. /d.

The appellant timely appealed, and we have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review legal determinations of the Court of Federal

Claims, such as a judgment on the administrative record,

without deference. Haselrig v. United States, 333 F.3d 1354,

1355 (Fed.Cir.2003).

The Tucker Act, 28 U.S.C. § 1491, authorizes actions for

monetary relief against the United States to be brought in the

Court of Federal Claims, but does not itself provide a sub-

stantive cause of action absent a money-mandating statute.

Martinez v. United States, 333 F.3d 1295, 1303

(Fed.Cir.2003) (en banc). The relevant money-mandating

statute in this case is the Military Pay Act, 37 U.S.C. § 204,

which “provides for suit in the Court of Federal Claims when

the military, in violation of the Constitution, a statute, or a

regulation, has denied military pay.” D ysart, 369 F.3d at

1315; see also, e.g., Holley v. United States, 124 F.3d 1462,

1465 (Fed.Cir.1997). ”

Here Lewis seeks military pay that was denied as a result

of the Secretary’s decision to delay Lewis’ promotion and to

remove Lewis’ name from the promotion list.’

While resort to a correction board is not mandatory, Mar-

tinez, 333 F.3d at 1305, where, as here, a service member has

elected to pursue relief before a corrections board, we have

reviewed the board’s decision to determine whether it is arbi-

trary, capricious, unsupported by substantial evidence, or

contrary to law. /d. at 1314; see also, e.g., Chappell v. Wal-

lace, 462 U.S. 296, 303, 103 S.Ct. 2362, 76 L.Ed. 2d 586

(1983) (“Board decisions are subject to judicial review and

can be set aside if they are arbitrary, capricious or not based

on substantial evidence.”); Porter v. United States, 163 F.3d

1304, 1312 (Fed.Cir.1998); Armstrong v. United States, 205

Ct.Cl. 754, 761 (1974).

We have confronted decisions by the military concerning

officer retention and promotion in a variety of contexts. In

? Retirement pay claims are brought under other money-mandating stat-

utes. See, e.g, 10 U.S.C. §§ 6323, 6333, 1370; see also Sawyer v. United

States, 930 F.2d 1577 (Fed.Cir. 1991) (holding that the disability retire-

ment pay statute, 10 U.S.C. § 1201, is money-mandating).

> The corrections board statute, 10 U.S.C. § 1552, is not a money-

mandating statute that provides the basis for a Tucker Act suit. Martinez,

333 F.3d at 1315.

general, we have said that the questions of the fitness of an

officer to serve on active duty, and in what capacity the offi-

cer should serve, are not for the courts to decide. Fisher v.

United States, 402 F.3d 1167, 1180-81 (Fed.Cir.2005) (en

banc) (noting that the question of “who should be allowed to

serve on active duty, and in what capacity” is generally non-

justiciable (citing Adkins v. United States, 68 F.3d 1317,

1323 (Fed.Cir.1995))); see also Orloff v. Willoughby, 345

U.S. 83, 91, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Dysart, 369

F.3d at 1315; Adkins, 68 F.3d at 1324. In addition, the Con-

stitution expressly provides that only the President has the

authority to appoint an officer, and thus to take the final step

in the promotion process. As such, in Dysart v. United

States, we made clear that “the President’s decision not to

appoint is a discretionary act that cannot be reviewed by a

court,” 369 F.3d at 1317, and that Congress cannot provide

for automatic appointments. Jd (“Congress does not have

the authority to require the President to exercise his ap-

pointment power....”).

However, the Constitution, statutes, and regulations can

appropriately regulate the categories of persons who may be

appointed to particular positions and the process by which

those appointments are made. For example, Congress can

restrain the President’s authority to appoint particular classes

of persons to officer positions or bar appointment unless par-

ticular procedures are followed. See, e.g., 10 U.S.C. §§ 611-

4] (2000); see also U.S. Const. art. II, § 2, cl. 2; Dysart, 369

F.3d at 1306-07. If an individual has a “clear cut legal enti-

tlement” to a position, but subordinate officials in the gov-

ernment misinterpret the Constitution, statutes, or regula-

tions, and improperly decline to recommend that individual

for nomination or appointment, redress may be available in

the courts. Smith v. Sec'y of the Army, 384 F.3d 1288, 1294-

95 (Fed.Cir.2004) (stating that an action for money arises

under the Military Pay Act when an individual has a “clear-

cut legal entitlement” to a promotion). Thus, the courts can

review promotion decisions for violations the Constitution,’

statutes,” or regulations.®

* See generally, e.g., Chappell, 462 U.S. at 303, 103 S.Ct. 2362 (recog-

nizing that enlisted men challenging denial of promotions based on un-

constitutiona! discrimination can seek relief from the board under the

correction board statute, and that “Board decisions are subject to judicial

review and can be set aside if they are arbitrary, capricious or not based

on substantial evidence.”); Berkley v. United States, 287 F.3d 1076,

1090-91 (Fed.Cir.2002) (addressing claim that reduction-in-force vio-

lated officers’ Fifth Amendment right to equal protection by taking into

account racial and gender characteristics in selecting them for involun-

tary separation).

* See, eg, Richey v. United States, 322 F.3d 1317, 1325-26

(Fed.Cir.2003) (where discharge resulted from allegedly improper non-

promotion decisions, court reviewed the military’s promotion procedures

for compliance with 10 U.S.C. § 628); Porter, 163 F.3d at 1311-12

(same); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 814, 817

(1979) (where discharge resulted from improperly denied promotions,

court concluded that the military had “violated both the spirit and letter

of the statute [10 U.S.C. § 3442(c), 8442(c) (1976) (repealed 1980)] and

regulations.”); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984, 996

(1979) (holding that promotion decision violated statutory requirement

governing composition of selection board); see also Roth v. United

States, 378 F.3d 1371, 1385 (Fed.Cir.2004) (noting that “the test{s} or

standards against which this court measures the military’s conduct [such

as failure to promote] are inherent: they are the applicable statutes and

regulations” (quoting Adkins, 68 F.3d at 1323)).

° See, e.g., Roth, 378 F.3d at 1386-87, 1393 (holding promotion decision

was unlawful because “Officer Effectiveness Reports” were adversely

affected by violation of Air Force Regulation 36-10; requiring Air Force

to reevaluate promotion decision); Evensen v. United States, 228 Ct.Cl.

207, 654 F.2d 68 (1981) (holding that promotion decision violated regu-

latory requirement governing composition of selection board); Sanders,

594 F.2d at 817-18 (military's refusal to consider officer's eligibility for

promotion based on properly corrected record violated a regulation re-

quiring correction of an officer’s record upon a showing of “probable

material error or injustice.”).

In such an action, the court cannot, of course, order the

President or his delegate to make the appointment. See Dy-

sart, 369 F.3d at 1317 (“[TJhe President’s decision ...

whether or not to exercise his appointment power is discre-

tionary, and ... the President cannot be compelled to appoint

military officers.”); Law v. United States, 11 F.3d 1061,

1065 (Fed.Cir.1993) (stating that the courts are “without au-

thority to grant {] promotion[s]”).’ The question becomes

whether the officer by delegation is exercising Presidential

discretion in declining to grant the appointment or whether

the official is improperly construing the Constitution, a stat-

ute, or regulation directing appointments (in which case the

action is reviewable).

The award of back pay for an appointment that was de-

nied by a subordinate official, as a result of an improper con-

struction of the Constitution, a statute, or a regulation, is

permissible because “[i]t is ... assumed that the constitution-

ally-mandated steps in the appointment process-nomination,

confirmation, and appointment-would be followed absent

improper action by subordinate officials, and that the rare

exercise of Presidential (or Senate) discretion not to make

the appointment creates no Article III bar to the action in the

Court of Federal Claims,” for back pay. Dysart, 369 F.3d at

1315; see Glidden Co. v. Zdanok, 370 U.S. 530, 568-71, 82

S.Ct. 1459, 8 L.Ed. 2d 671 (1962); see also Chicago & S. Air

” See also Randall v. United States, 95 F.3d 339, 348 (4th Cir.1996)

(“The district court would have no authority to order the Secretary of the

Army to promote Plaintiff to Lieutenant Colonel.”); Adkins, 68 F.3d at

1324 (an officer’s “prayer that the Court of Federal Claims direct the

Secretary to promote him to the rank of colonel plainly was a request for

impermissible ‘interfer[ence] with legitimate Army matters.’” (quoting

Orloff, 345 U.S. at 94, 73 S.Ct. 534)); Yee v. United States, 206 Ct.Cl.

388, 512 F.2d 1383, 1388 (1975) (denying a request for a court-ordered

promotion, observing that “[c]Jourts generally are not in the ‘promotion

business’”’).

10a

Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14, 68

S.Ct. 431, 92 L.Ed. 568 (1948).®

Against this backdrop, we can quickly dispose of Lewis’

contention that she was promoted by operation of law pursu-

ant to 10 U.S.C. § 624(a)(2) on the theory that the language

of 624(d) mandates automatic appointment when the 18-

month statutory delay period expires. We addressed and re-

jected the same argument, with respect to the same statute, in

Dysart. We held that “the language of [section 624] does not

provide for automatic appointment....” 369 F.3d at 1313. We

further held that the statute could not constitutionally provide

for automatic appointment because “military officers must be

appointed pursuant to the constitutional process, which re-

quires appointments at the discretion of the President, not

automatic appointments pursuant to statute.” /d. at 1313,

1315.

While Lewis contends that Dysart was wrongly decided,

it is, of course, binding on this panel. Further, Lewis’ claim

is not distinguishable from Dysart. It is of no consequence

that the President himself removed Dysart’s name from the

list more than six months after the deadline referred to in

624(d)(4), whereas the Secretary removed Lewis’ name act-

ing as a delegate of the President.” The premise of Lewis’

* See also Law, 11 F.3d at 1065 (holding that the court has the au-

thority to recognize a promotion by awarding back pay); cf Wood v.

United States, 107 U.S. 414, 417, 18 Ct. Cl. 761, 2 S.Ct. 551, 27 L.Ed.

542 (1883) (holding that Congress may not change an officer’s grade,

which requires appointment, but may change an officer’s pay and direct

that the officer be paid as though he had been appointed to a higher

grade).

* Just as the authority to appoint military officers can be delegated, see,

e.g., Orloff, 345 US. at 90, 73 S.Ct. 534; United States v. Moore, 95 U.S.

760, 762, 24 L.Ed. 588 (1877); Dysart 1312, so too can the authority to

lla

argument is the same as Dysart’s — that section 624 provides

for automatic appointment. We rejected this premise in Dy-

sart, and decline to revisit it now.

Lewis also claims that the BCNR erred in sustaining the

Secretary’s decision to deny her promotion. She contends

that an incorrect interpretation of 10 U.S.C. § 1094 resulted

in the denial of her promotion.'° The DoD policy imple-

mented by the Secretary is reflected in a policy memoran-

dum that was issued by the Assistant Secretary of Defense

for Health Administration (“ASD(HA)”). The memorandum

provides:

Any physician license in a licensure category that re-

stricts the physician to practice in a federal facility or

within some other confined limits does not comply

with the requirement [of § 1094(a)(1)} for an “unre-

stricted license.” Unless waived [under § 1094(a)(2)],

all physicians must have at least one current, unre-

stricted license.... Effective October 1, 1999, a physi-

cian without a full-scope license may not provide

health care as a physician, unless a waiver is granted

under this policy.

J.A. at 140. In a later memorandum, the ASD(HA) ex-

plained that the licensing requirement applies to “{a]ll physi-

decline to appoint officers. D'Arco v. United States, 194 Ct.Cl. 811, 441

F.2d 1173, 1175 (1971); see also Dysart, 369 F.3d at 1316.

' In addition to arguing that section 1094 does not bar her promotion,

Lewis urges that the BCNR’s reliance on SECNAVINST 1120.12A was

erroneous because SECNAVINST 1120.12A provides no support for the

licensing requirement. The question whether the BCNR properly relied

on SECNAVINST 1120.12A is irrelevant, because the BCNR’s decision

was fully supported by section 1094(a) itself.

12a

cians in the DoD,” including “health care personnel whose

duties are entirely administrative in nature and do not in-

volve the provision of patient care.” J.A. at 142. Lewis con-

tends that the DoD policy of requiring all physicians to carry

an Unrestricted license is inconsistent with section 1094.

Prior to October 1, 1999, section 1094 required all per-

sons “provid[ing] health care independently as ... health-care

professional[s]” to possess a “current license.” Section

1094(e)(2) provided that “[t]he term ‘health-care profes-

sional’ means a physician, dentist, clinical psychologist, or

nurse and any other person providing direct patient care as

may be designated by the Secretary of Defense in regula-

tions.” 10 U.S.C. § 1094(e)(2) (emphasis added).

Before 1999 the statute did not include any special re-

quirement applicable to physicians. 10 U.S.C. § 1094(a)(1)

(1994). In October 1999, a second sentence was added to

section 1094(a)(1) addressed specifically to physicians:

In the case of a physician, the physician may not

provide health care as a physician under this chapter

unless the current license is an unrestricted license

that is not subject to limitation on the scope of prac-

tice ordinarily granted to other physicians for a simi-

lar specialty by the jurisdiction that granted the li-

cense.

10 U.S.C. § 1094(a)(1) (2000), as amended by Pub.L. 105-

261, 112 Stat.2073.

Lewis points out that section 1094 only requires any

“physician ... provid[ing] health care as a physician” to

carry an unrestricted license. In Lewis’ view, a physician

only provides health care as a physician if he or she provides

direct patient care. Lewis bases this argument on the fact

13a

that a physician who does not provide direct patient care is

not a “health care professional” within the meaning of the

first sentence of 1094(a)(1) of the statute. However, it is ir-

relevant that such a physician providing indirect care may

not meet the statutory definition of “health care professional”

in the pre-1999 version of the statute. The question here is

what is meant by the second sentence, and the operative

terms do not require direct care. The definition of physician

is “a person who is legally qualified to practice medicine,”

and the practice of “medicine” is the provision of health care.

Random House Webster’s Unabridged Dictionary at 1462

(2d ed.1998).'' “Healthcare” is defined as “the field con-

cerned with the maintenance or restoration of the health of

the body or mind.” /d. at 882. Based on the language of the

statute, a physician who provides indirect care “provide([s]

health care as a physician” and is subject to the unrestricted

licensing requirement. Lewis does not contend that her du-

ties were unrelated to the provision of health care. Indeed,

all of her assignments appear to have involved the provision

of health care.’

This broader definition is confirmed by the history and

structure of the statute. We must assume that the statute was

amended in 1999 for a purpose. The evident purpose of the

amendment was to impose special requirements for physi-

cians not applicable to other health care professionals. The

fact that “health care professionals” generally were not re-

'' Id. at 1194 (defining “medicine” as “the art or science of restoring or

preserving health or due physical condition, as by means of drugs, surgi-

cal operations or appliances, or manipulations”).

'? For example, she served in various positions at the Uniformed Services

University of the Health Sciences in Bethesda, Maryland, including Act-

ing Vice President in the Office of Recruitment and Minority Affairs;

Director, Family Practice Clerkship; Director, University Health Center;

Vice Chair, Department of Family Medicine.

14a

quired to have a license unless they were providing “direct

patient care” says nothing about the statute’s special re-

quirements for physicians. Indeed, the omission of the “di-

rect patient care” language from the special provision appli-

cable to physicians added by the 1999 amendment strongly

suggests in and of itself that the license requirement for phy-

sicians went beyond direct patient care.

Our interpretation is reinforced by the policy memoranda

issued by the Assistant Secretary of Defense for Health Ad-

ministration to which we owe at least Skidmore deference.

See Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89

L.Ed. 124 (1944). The ASD(HA) is “the principal staff as-

sistant and advisor to the ... Secretary and Deputy Secretary

of Defense for all DoD health policies, programs, and activi-

ties” and is tasked with “effectively execut[ing] the Depart-

ment’s medical mission.” 32 C.F.R. § 367.3 (2005). The

ASD(HA)’s memorandum of January 9, 1999, set forth the

DoD’s view that section 1094(a)(1) requires that “all physi-

cians must have at least one current unrestricted license....”

J.A. at 140. The later memorandum acknowledged that

“(physicians in purely administrative positions are not un-

usual,” but stated that “(t]he vast majority of these positions

are predicated on the knowledge base and credentials unique

to physicians,” and thus reaffirmed that the licensing re-

quirement applies to these physicians as well. J.A. at 142.

We therefore conclude that Lewis was not denied promo-

tion based on an incorrect interpretation of section 1094.

15a

CONCLUSION

For the foregoing reasons, we affirm the decision of the

Court of Federal Claims.

AFFIRMED

COSTS

No costs.

l6a

APPENDIX B

Evelyn L. LEWIS, Plaintiff,

The UNITED STATES, Defendant.

No. 03-2796C.

United States Court of Federal Claims.

July 29, 2005.

MEMORANDUM OPINION AND ORDER

BRADEN, Judge.

FACTUAL BACKGROUND’

On June 13, 1983, Plaintiff began active duty as a physi-

cian with the United States Navy (“Navy”). See AR at 144.

Since 1991, Plaintiff held a restricted medical license from

the State Oklahoma. See Pl.App. at 4-5.

' The facts discussed herein are derived from: Plaintiff's September 26,

2000 Complaint (“Compl.”); Plaintiff's January 6, 2004 Second

Amended Complaint (“Second Amended Compl.”); Defendant’s Appen-

dix to the January 24, 2005 Statement of Facts (“Gov't App.”); the Ad-

ministrative Record, filed on January 27, 2005 (“AR”); the Appendix to

Plaintiff's February 23, 2005 Cross-Motion for Summary Judgment

(“PL.App.”); and laintiffs February 28, 2005 Third Amended Com-

plaint (“Third Amended Compl.”).

17a

On October 17, 1998, Congress enacted the Strom

Thurmond National Defense Authorization Act For Fiscal

Year 1999, revising the licensing standards for military phy-

sicians and requiring every military physician to have an un-

restricted medical license. See Strom Thurmond National

Defense Authorization Act For Fiscal Year 1999, Pub.L. No.

105-261, 112 Stat. 2073 (codified as amended at 10 U.S.C. §

1094(a)(1) (1998)). On January 29, 1999, the Assistant Sec-

retary of Defense for Health Affairs issued a letter outlining

this new policy regarding physician licensing that stated:

“Unless [the requirement is] waived, all physicians must

have at least one current unrestricted license.” Gov’t App. at

25.

On April 21, 1999, the President nominated Plaintiff for

promotion to the rank of Captain and on June 30, 1999, the

Senate confirmed her nomination. See Gov’t App. at 1-3;

see also 145 CONG. REC. $7966-01 (daily ed. June 30,

1999). Plaintiff's promotion was scheduled to become effec-

tive on August 1, 2000. See AR at 29. In December 1999,

however, the Bureau of Medicine and Surgery directed

Plaintiff to show cause for retention in the Navy, because she

did not have an unrestricted medical license, as required by

the new policy. See AR 17-18; see also Secretary of the

Navy Instruction (“SECNAVINST”) 1120.12A (1991) (re-

quiring that every Navy physician have an unrestricted

medical license in order to qualify for appointment as an Of-

ficer in the Navy Medical Corps).

On May 2, 2000, a Board of Inquiry reviewed Plaintiff's

file and unanimously found that: she had not performed in a

substandard manner; none of the specified reasons for the

board’s inquiry warranted separation for cause; and the case

should be closed. See Gov’t App. at 4. Nevertheless, on

June 27, 2000, the Chief of Naval Personnel independently

determined that Plaintiff was not qualified for promotion and

18a

informed Plaintiff that her promotion would be delayed

pending a Final Decision by the Secretary of the Navy. See

Gov’t App. at 6. On March 5, 2002, Plaintiff applied to the

Board for Correction of Naval Records (“BCNR”), seeking

promotion to the rank of Captain. See AR at 27-40. On May

10, 2002, the Secretary of the Navy removed Plaintiff's

name from the Fiscal Year 2000 Active Staff Promotion List.

Id. at 17-18. On February 10, 2003, the BCNR denied Plain-

tiffs application for relief, based on the 1999 policy requir-

ing that every Department Of Defense (“DOD”) physician

have a current unrestricted license, as required by

SECNAVINST 1120.12A. /d at 12- 13; see also Gov't

App. at 25. On March 31, 2003, Plaintiff requested a volun-

tary retirement from active duty. See Gov’t App. at 17. On

January 1, 2004, the Secretary of the Navy granted her re-

quest. /d. at 19.

PROCEDURAL HISTORY

On September 26, 2000, Plaintiff filed a Complaint in the

United States District Court for the District of Columbia al-

leging that DOD arbitrarily and capriciously issued a regula-

tion that barred her promotion to the rank of Captain. On

November 20, 2000, the Government filed a Motion to Dis-

miss. On August 15, 2001, the United States District Court

granted the Government’s motion on the basis of non-

justiciability and failure to exhaust administrative remedies.

See Lewis v. Rumsfeld, 154 F.Supp. 2d 56, 57 (D.D.C. 2001).

On August 21, 2001, Plaintiff filed a Notice of Appeal. On

April 30, 2003, the United States Court of Appeals for the

District of Columbia Circuit reversed and remanded, in-

structing Plaintiff to seek leave of the United States District

Court to amend the Complaint to include a damages claims

and to transfer the case to the United States Court of Federal

Claims. See Lewis v. Rumsfeld, No. 01-5296, 2003 WL

21018861 (D.C.Cir. Apr. 30, 2003). On May 6, 2003, Plain-

19a

tiff filed an Amended Complaint and a Motion to Transfer

that case to the United States Court of Federal Claims. On

June 2, 2003, the United States District Court granted Plain-

tiffs motion.

On December 12, 2003, the case was assigned to the

Honorable Lawrence M. Baksir, who assigned it to the Hon-

orable Eric J. Bruggink for ADR pilot proceedings. On De-

cember 19, 2003, Judge Baskir recused himself and reas-

signed the case to the undersigned judge.

On January 21, 2004, a Second Amended Complaint was

filed alleging, as a matter of law, that Plaintiff was promoted

to the rank of Captain, or in the alternative, that the BCNR

acted arbitrarily and capriciously when it refused to correct

Plaintiff's record to show that she was promoted. See Second

Amended Compl. ff 21-22. On February 26, 2004, the Gov-

ernment filed a Motion to Stay, pending final resolution of

Dysart v. United States, No. 02-294C (Fed.Cl. May 5, 2003).

On May 6, 2004, the United States Court of Appeals for the

Federal Circuit issued tiat decision. See Dysart v. United

States, 369 F.3d 1303, 1316 (Fed.Cir. 2004) (holding that the

Secretary of the Navy may remove an Officer’s name from a

promotion list at any time prior to appointment). The appel-

lant advised the court that a petition for a writ of certiorari to

the United States Supreme Court would be filed. No peti-

tion, however, was filed. On July 8, 2004, the court issued

an Order granting the requested stay. On April 12, 2005, the

court lifted the stay.

On January 24, 2005, the Government filed a Motion to

Dismiss, pursuant to RCFC 12(b)(1), or in the alternative,

for Judgment Upon the Administrative Record. On January

27, 2005, the Government filed the Administrative Record.

On February 23, 2005, Plaintiff filed a Cross-Motion and

Response. On February 28, 2005, a Third Amended Com-

20a

plaint was filed, alleging, as a matter of law, that Plaintiff

was promoted to the rank of Captain, or in the alternative,

that the BCNR acted arbitrarily and capriciously when it re-

fused to correct Plaintiff's record to show that she was pro-

moted, and seeking active duty pay, allowances, and retired

pay of a Captain (O-6). See Third Amended Compl. $f 21-

23. On April 8, 2005, the Government filed a Reply thereto.

On April 12, 2005, Judge Bruggink ordered the case re-

moved from the ADR process and returned to the under-

signed judge for adjudication.

** *

On April 18, 2005, Plaintiff filed a Sur-Reply.

DISCUSSION

A. Jurisdiction.

The United States Court of Federal Claims has been au-

thorized by Congress to “render judgment upon any claim

against the United States founded either upon the Constitu-

tion, or any Act of Congress or any regulation of an execu-

tive department, or upon any express or implied contract

with the United States, or for liquidated or unliquidated dam-

ages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).

In United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct.

1349, 63 L.Ed. 2d 607 (1980), however, the United States

Supreme Court held that the Tucker Act does not create any

substantive right for monetary damages. Therefore, a plain-

tiff must identify and plead an independent contractual rela-

tionship, constitutional provision, federal statute, and/or ex-

ecutive agency regulation that provides a substantive right to

money damages in order for the court to have jurisdiction.

See Todd v. United States, 386 F.3d 1091, 1094

(Fed.Cir.2004) (“[J]urisdiction under the Tucker Act requires

2la

the litigant to identify a substantive right for money damages

against the United States separate from the Tucker Act.”);

see also Fisher v. United States, 402 F.3d 1167, 1173-74

(Fed.Cir.2005) (en banc) (emphasis in original) (recognizing

that United States v. White Mountain Apache Tribe, 537 U.S.

465, 472-73, 123 S.Ct. 1126, 155 L.Ed. 2d 40 (2003) articu-

lated a new test that “demands a showing demonstrably

lower .... It is enough that a statute creating a Tucker Act

right be reasonably amenable to the reading that it mandates

a right of recovery in damages ... a fair inference will do.”);

Roth v. United States, 378 F.3d 1371, 1384 (Fed.Cir.2004)

(“Because the Tucker Act itself does not provide a substan-

tive cause of action,... a plaintiff must find elsewhere a

money-mandating source upon which to base a suit.”); Khan

v. United States, 201 F.3d 1375, 1377 (Fed.Cir.2000) (quot-

ing James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998))

(“The plaintiff ‘must assert a claim under a separate money-

mandating constitutional provision, statute, or regulation, the

violation of which supports a claim for damages against the

United States.”’’).

Although the Tucker Act does not provide independent

jurisdiction over claims for declaratory or injunctive relief,

the court has authority to provide equitable relief if the ac-

tion is collateral to a claim for monetary damages. See 28

U.S.C. § 1491(a)(2)’; see also Brown v. United States, 105

F.3d 621, 624 (Fed.Cir.1997) (“The Tucker Act does not

provide independent jurisdiction over such claims for equita-

ble relief.”); Passaro v. United States, 774 F.2d 456, 459

? 28 U.S.C. § 1491(a)(2) provides:

To provide an entire remedy and to complete the relief afforded

by the judgment, the court may, as an incident of and collateral

to any such 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 is-

sued to any appropriate official of the United States.

22a

(Fed.Cir.1985) (“Equity, to the extent that it can be adminis-

tered by the [United States Court of Federal Claims], exists

as an incident of general jurisdiction under the Tucker

Act[.]”).

Plaintiff's Third Amended Complaint properly alleges a

money-mandating statute by invoking the Military Pay Act,

37 U.S.C. § 204, since that Act, in relevant part, provides:

“a member of the uniform service who is on active duty ...

[is] entitled to the basic pay of the pay grade to which as-

signed.” 37 U.S.C. § 204(a); see also Martinez vy. United

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

the context of military discharge cases, the applicable

‘money-mandating’ statute that is generally invoked is the

Military Pay Act, 37 U.S.C. § 204[.]”). Therefore, the court

has jurisdiction to adjudicate the claims alleged in the Third

Amended Complaint.

B. Justiciability.

When legal challenges to final military decisions are

raised, however, the court is obligated first to consider the

justiciability of the legal question presented. See Orloff v.

Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842

(1953) (“[J]udges are not given the task of running the [mili-

tary]. The responsibility for setting up channels through

which such grievances can be considered and fairly settled

rests upon the Congress and upon the President of the United

States and his subordinates.”); see also Murphy v. United

States, 993 F.2d 871, 873 (Fed.Cir.1993) (“[J]udicial review

is only appropriate where the Secretary [of the Navy]’s dis-

cretion is limited, and Congress has established ‘tests and

standards’ against which the court can measure his con-

duct.’’).

23a

The United States Court of Appeals for the Federal Cir-

cuit specifically has held that determining whether a particu-

lar officer merits promotion does not fall within the judicial

province. See Lindsay v. United States, 295 F.3d 1252, 1257

(Fed.Cir.2002) (holding that the merits of the military’s deci-

sion not to promote a service member are non-justiciable).

Although the merits of a promotion determination are non-

justiciable, however, the United States Court of Appeals for

the Federal Circuit has recognized that the United States

Court of Federal Claims has limited authority to adjudicate a

constitutional challenge arising from a procedure used by the

Armed Forces. See Adkins v, United States, 68 F.3d 1317,

1323 (Fed.Cir.1995) (emphasis in original) (“[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 de-

Cision may present a justiciable controversy.”); see also

Murphy, 993 F.2d at 873 (“When the military is given unlim-

ited discretion by Congress, it is nevertheless bound to fol-

low its own procedural regulations if it chooses to implement

some.”). Therefore, when the Armed Forces have issued a

Final Decision, the court can intervene only to ensure that

the decision was made in a proper procedural manner. See

Wagner v. United States, 365 F.3d 1358, 1361

(Fed.Cir.2004) ( “[W]e will not disturb the decision of the

corrections board unless it is arbitrary, capricious, contrary

to law, or unsupported by substantial evidence.”); see also

Carmichael yv. United States, 298 F.3d 1367, 1373

(Fed.Cir.2002) (“If the Navy failed to follow its own policies

and did not properly provide [plaintiff] with religious ac-

commodation procedures, [plaintiff's] discharge may be in-

voluntary because he was faced with [an] untenable op-

tion[.]”); Murphy, 993 F.2d at 873-74 (holding that the

United States Court of Federal Claims may decide whether

the military followed procedures set forth in its own regula-

tions).

24a

C. Standard Of Decision On A Motion To Dismiss For Lack

Of Jurisdiction.

In ruling on a motion to dismiss, the court is “obligated

to assume all factual allegations to be true and to draw all

reasonable inferences in plaintiff's favor.” See Henke v.

United States, 60 F.3d 795, 797 (Fed.Cir.1995) (citing

Scheuer v. Rhodes, 416 U.S. 232, 236-37, 94 S.Ct. 1683, 40

L.Ed. 2d 90 (1974)); see also RCFC 12(b)(1). As the non-

moving party, however, plaintiff bears the burden of estab-

lishing jurisdiction by a preponderance of the evidence. See

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,

748 (Fed.Cir.1988) (“[O]nce the [trial] court’s subject matter

jurisdiction [is] put in question it [is] incumbent upon [plain-

tiff] to come forward with evidence establishing the court’s

jurisdiction.”). A federal trial court may not grant a motion

to dismiss unless “it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46,

78 S.Ct. 99, 2 L.Ed. 2d 80 (1957); see also Scheuer, 416

U.S. at 236, 94 S.Ct. 1683 (requiring only that “the allega-

tions of the complaint should be construed favorably to the

pleader.”).

D. Standard Of Decision For Judgment On The Administra-

tive Record.

The standard of review for Judgment on the Administra-

tive Record, pursuant to RCFC 56.1, is similar but not iden-

tical to a motion for summary judgment under RCFC 56(c).

See Bannum, Inc. v. United States, 404 F.3d 1346, 1355

Fed.Cir.2005). The standard for a motion for summary

judgment is whether the moving party has proved its case as

a matter of fact and law or whether a genuine issue of mate-

rial fact precludes judgment. See Anderson v. Liberty Lobby,

25a

Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed. 2d 202

(1986). In contrast, the standard for Judgment on the Ad-

ministrative Record is narrower, i.e., given all the disputed

and undisputed facts, whether the plaintiff has met the bur-

den of proof to show that the decision was not in accordance

with the law. See Bannum, 404 F.3d at 1357 (instructing the

court to make “factual findings under RCFC 56.1 from the

[limited] record evidence as if it were conducting a trial on

the record.”). In the case of a final military decision, the re-

view of the Administrative Record is limited to determining

whether applicable procedures were followed and the deci-

sion is supported by “substantial evidence.” See Heisig v.

United States, 719 F.2d 1153, 1156 (Fed.Cir.1983)

(“{C]Jourts cannot substitute their judgment for that of the

military departments when reasonable minds could reach dif-

fering conclusions on the same evidence.”). Specifically, the

court may not retry the case on the merits. /d. at 1157.

Armed Forces Board of Correction decisions may be re-

viewed only to determine whether they are arbitrary and ca-

pricious or otherwise contrary to law. See, e.g., Chappell v.

Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 76 L.Ed. 2d 586

(1983) (“[Military correction board] decisions are subject to

judicial review [by the federal courts] and can be set aside if

they are arbitrary, capricious, and not based on substantial

evidence.”); Porter v. United States, 163 F.3d 1304, 1312

(Fed.Cir.1998) (“When called upon to review a decision of a

corrections board, or of a Secretary taken upon recommenda-

tion from a corrections board, the standard of review is

whether the decision is arbitrary, capricious, unsupported by

substantial evidence, or contrary to law.”). The plaintiff

bears the burden of proving such behavior by “cogent and

clearly convincing evidence.” Wronke v. Marsh, 787 F.2d

1569, 1576 (Fed.Cir.1986). Such proof must also “overcome

the strong, but rebuttable, presumption that the administra-

tors of the military, like ocher public officers, discharge their

26a

duties correctly, lawfully, and in good faith.” Porter, 163

F.3d at 1316 (quoting Sanders v. United States, 219 Ct. Cl.

285, 594 F.2d 804, 813 (1979)); see also Hoffman v. United

States, 894 F.2d 380, 385 (Fed.Cir.1990) (quoting Guy v.

United States, 221 Ct.Cl. 427, 608 F.2d 867, 870 (1979))

(“Military officers, like other public officials, are presumed

to ‘discharge their duties correctly, lawfully, and in good

faith.’”).

E. The United States Court Of Appeals For The Federal Cir-

cuit Has Held That A Military Officer Cannot Claim An

“Automatic Promotion.”

The process for promotion in the Navy is as follows.

First, the Secretary of the Navy convenes a Selection Board

that recommends Officers between the grades of lieutenant

(junior grade) and rear admiral (lower half) for promotion.

See 10 U.S.C. § 611(a). The Secretary of the Navy then for-

wards the names to the Joint Chiefs of Staff, if required, and

to the Secretary of Defense for transmittal to the President

for approval or disapproval. See 10 U.S.C. §§ 618(a)-(d).

The President is granted sole authority to appoint mili-

tary Officers “by and with the Advice and Consent of the

Senate.” U.S. Const. art. II, § 2, cl. 2; see also Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 155-56, 2 L.Ed. 60 (1803).

Therefore, upon receipt of the Selection Board’s report, the

President decides whether the Officers listed should be pro-

moted, in the order of seniority:

[O]fficers on a promotion list for a competitive cate-

gory 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 se-

27a

lected for promotion in that competitive category

have been promoted.

10 U.S.C. § 624(a)(2). Next, the President submits any ap-

proved names to the Senate for confirmation. See 10 U.S.C.

§ 629(b). If a name is not confirmed, it is removed from the

promotion list. Jd. The President, however, has absolute dis-

cretion to remove an Officer’s name from the promotion list.

See Dysart, 369 F.3d at 1311 (“The constitutional process

allows the President complete discretion in choosing whether

or not to appoint an officer. The statute does not and cannot

alter that process by providing for automatic appointment.”).

Once an Officer is confirmed by the Senate, however, the

Secretary of the Navy is responsible for setting the date of

appointment that establishes the date of promotion to the

next highest rank. See 10 U.S.C. § 741(d)(2) (“Except as

otherwise provided by law, the date of rank of an officer who

holds a grade as the result of a promotion is the date of his

appointment to that grade.”’); see also 10 U.S.C. § 624(b)(2).

Accordingly, the Secretary of the Navy has authority to issue

regulations to delay an Officer’s appointment where “there is

cause to believe that the officer is mentally, physically, mor-

ally, 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 (pro-

viding that the Secretary of the Navy must apply to remove

an Officer from a promotion list for any grade below O-7).

The Secretary must follow two steps in exercising this au-

thority. First, the Secretary must provide the Officer whose

promotion has been delayed with “written notice of the

grounds for the delay, unless it is impracticable to give such

written notice before the date of the appointment, in which

case such written notice shall be given as soon as practica-

ble.” 10 U.S.C. § 624(d)(3). Second, the Officer’s promo-

tion “may not be delayed under this subsection for more than

28a

six months after the date on which the officer would other-

wise have been appointed unless the Secretary concerned

specifies a further period of delay.” 10 U.S.C. § 624(d)(4);

see also SECNAVINST 1420.1A 4 23. The presidential au-

thority to remove the name of any Officer from a list of Offi-

cers recommended for promotion is delegated to the Secre-

tary of Defense for grades below rear admiral (lower grade).

See 3 U.S.C. §§ 301, 302; see also 10 U.S.C. § 629(a); Exec.

Order No. 12,396, § 1(b), 47 Fed. Reg. 55,897 (Dec. 9,

1982); Law v. United States, 11 F.3d 1061, 1067 (Fed. Cir.

1993) (holding that 3 U.S.C. § 302 does not require the

President expressly to delegate the authority to deny or af-

firm the promotion of an Officer).

In this case, the Chief of Naval Personnel determined

that Plaintiff was not qualified for promotion because she did

not have an unrestricted medical license. See Gov’t App. at

6. On June 27, 2000, Plaintiff was informed that the Chief of

Naval Personnel was delaying her promotion pending a Final

Decision by the Secretary of the Navy. Id? (FN3] On May

10, 2002, the Secretary of the Navy removed Plaintiff's

name from the Fiscal Year 2000 Active Staff Promotion List,

denying her promotion. See AR at 17-18. The President has

complete discretion to take such action and the record does

not evidence any procedural deficiencies that would offend

constitutional requirements of due process. See Dysart, 369

F.3d at 1311-14. Therefore, the court grants the Govern-

ment’s Motion for Judgment on the Administrative Record.

> The record does not address whether Plaintiff asked for a waiver under

10 U.S.C. § 1094(a)(1) or took any steps to obtain an unrestricted license

after being notified of the promotion delay.

29a

CONCLUSION

For these reasons, the court has determined that the Gov-

ernment’s Motion for Judgment on the Administrative Re-

cord is granted. Accordingly, the Government’s Motion to

Dismiss is moot and Plaintiff's Cross-Motion for Summary

Judgment on the Administrative Record is denied. The

Clerk of the court is ordered to enter judgment in favor of the

Government.

IT IS SO ORDERED.

30a

APPENDIX C

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 ap-

pellant sought reinstatement to the Navy and asserted a sepa-

rate claim for medical additional special pay (“MASP”).

The Court of Federal Claims granted summary judgment for

3la

the government on the administrative record. Dysart v.

United States, No. 02-294C (Fed.Cl. May 5, 2003). We af-

firm.

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 ap-

point “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 Sen-

ate. 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 Appoint-

ment of such inferior Officers, as they think proper, in the

President alone, in the Courts of Law, or in the Heads of De-

partments.” 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

32a

subject to this constitutional process. See Weiss v. United

States, 510 U.S. 163, 174, 114 S.Ct. 752, 127 L.Ed.2d 1

(1994) (holding that “the Appointments Clause [cannot be

circumvented] by unilaterally appointing an incumbent to a

new and distinct office”), affg 36 MJ. 224, 227

(C.M.A.1992) (“All regular officers of the military services

are appointed by the President and confirmed by the Sen-

ate.... Active duty military officers are appointed and con-

firmed 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 offi-

cers. In particular, Congress directed the Navy to use a proc-

ess 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 se-

lected officers in a particular grade to fill vacancies in the

next higher grade and submitted a report with its recommen-

dations “to the President for approval or disapproval.” Jd.,

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 Person-

nel 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 rec-

ommend 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).

33a

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 Secre-

tary 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 selec-

tion board’s report. See id. § 624(a)(1). The statute pro-

vides:

[O]fficers on a promotion list for a competitive cate-

gory shall be promoted to the next higher grade when

additional officers in that grade and competitive cate-

gory 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 pre-

scribe regulations that provide for the delay of an officer’s

* DOPMA originally designated this grade as “commodore admiral.”

See § 105, 94 Stat. at 2851. In 1981, the grade was changed to “commo-

dore,” 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 Authori-

zation Act, 1986, Pub. L. No. 99-145, § 514, 99 Stat. 583, 628 (1985).

34a

appointment if “there is cause to believe that the officer is

mentally, physically, morally, or professionally unqualified

to perform the duties of the grade for which he was selected

for promotion.” /d. § 624(d)(2). Pursuant to this authority,

the Secretary has promulgated regulations in paragraph 23 of

Secretary of the Navy’s Instruction (“Secretary’s Instruc-

tion”) 1420.1A. The statute and regulations impose two limi-

tations on the Secretary’s authority to delay an officer’s ap-

pointment 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 im-

practicable 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). Sec-

ond, 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 pro-

visions. See Secretary’s Instruction 1420.1A § 23 (1991).

The current statute, like its predecessor, states that ap-

pointments are made “by the President, by and with the ad-

vice 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 constitu-

tional requirements. In accordance with the statute, the Sec-

retary of the Navy convenes selection boards and approves

> 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, § I(c), 3 C.F.R. 234 (1983), reprinted in 3 U.S.C. § 301 (2000).

35a

their selections. See 10 U.S.C. § § 611(a), 618(a). The se-

lections are forwarded to the Chairman of the Joint Chiefs of

Staff, if required; the Secretary of Defense; and the Presi-

dent, 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 nomina-

tion 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 Manage-

ment 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 appoint-

ment. The appointee need not formally accept the appoint-

ment, as “[a]n officer who is appointed to a higher grade un-

der 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).*

* 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 ap-

pointment and who at the time of such appointment was

awarded service credit for prior commissioned service or con-

structive credit for advanced education or training, or special

experience shall be determined so as to reflect such prior com-

missioned service or constructive service. Determinations by

36a

See id. § 624(b)(2).

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 ap-

pellant was nominated by the President to be rear admiral on

March 20, 1996. See 142 Cong. Rec. 5,626 (1996). The ap-

pellant 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 ap-

pellant that the Secretary of the Navy was considering rec-

ommending 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 rec-

ommended 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

the Secretary concerned under this paragraph shall be made un-

der 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. 12001).

37a

six months after the September 1, 1997, date on which the

officer next-in-line to the appellant was promoted.’ The rea-

sons 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 re-

ceived an adverse fitness report from his commanding offi-

cer, Vice Admiral Koenig, concerning the conduct of the ap-

pellant’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 subsec-

tion 624(a)(2) before the President removed his name from

the promotion list. Another is whether the President was ob-

ligated 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 offi-

cers who agree to remain on active duty for a period of not

less than 1 year as computed from the effective date 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

* 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 gen-

eral (in the Army, Air Force, and Marine Corps). See Exec. Order No.

12,396, § 1(b).

38a

December 31, 1997. An officer seeking MASP must

“[djemonstrate an adequate level of military and professional

performance as determined and documented by the com-

manding officer.” Jd. § 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 Septem-

ber 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, aileging that he had been automatically

promoted to rear admiral as of September 1, 1997. He

sought the correspendiag pay and benefits of that grade

along with the MASP o* $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 su-

pervision of the Board to the Assistant Secretary of the Navy for Man-

power and Reserve Affairs. See 32 C.F.R. § 700.324(b) (2003).

39a

the Navy. The Court of Federal Claims granted the govern-

ment’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 appel-

lant’s claim for MASP was non-justiciable because there was

no procedural error in the Navy’s denial of MASP. Jd. 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 Fed-

eral 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). Ac-

cordingly, 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.” /d.

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 appel-

lant recognizes that the statute and regulations provide a

mechanism for delaying an appointment, see 10 U.S.C. §

624(d); Secretary’s Instruction 1420.1A 4 23, but he alleges

that the attempt to delay his appointment was improper and

ineffective under the statute and regulations. First, the appel-

lant argues that the January 24, 1997, letter did not constitute

“written notice of the grounds for the delay.” 10 U.S.C. §

40a

624(d)(3); Secretary’s Instruction 1420.1A J 23c. Second,

he argues that the September 11, 1997, letter informing him

that his promotion was delayed came after he had already

been automatically promoted. Third, he argues that, even if

his promotion were properly delayed, it could not have been

delayed for more than six months after September 1, 1997,

when the officer next-in-line to the appellant was promoted,

because the Secretary did not specify any “further period of

delay,” 10 U.S.C. § 624(d)(4). The government responds

with three arguments. First, the government argues that the

statute cannot provide for automatic appointments because

the appointment power is entirely within the President’s dis-

cretion. Second, the government argues that the promotion

was properly delayed. Finally, the government argues that

any violation of section 624(d) was harmless. We need not

reach the government’s second two arguments because we

agree with the first. The constitutional process allows the

President complete discretion in choosing whether or not to

appoint an officer. The statute does not and cannot alter that

process by providing for automatic appointment.

The constitutional appointment process for Senate-

confirmed officers of the United States is most famously de-

scribed in Marbury v. Madison. Under the Constitution, the

President is given the authority to appoint officers “by and

with the Advice and Consent of the Senate.” U.S. Const. art.

II, § 2, cl. 2. As noted above, Marbury set forth three sepa-

rate actions that are ordinarily required for a person, subject

to Senate confirmation, to be appointed to office: the Presi-

deat’s nomination; confirmation by the Senate; and the

President’s appointment. See 5 U.S. (1 Cranch) at 155-56.

Each discrete action--nomination, confirmation, and ap-

pointment--must be made for a promotion to be effective.

As an early opinion of the Attorney General correctly noted:

4la

To constitute an appointment under [Article II], it

is necessary--1st, that the President should nominate

the person proposed to be appointed; 2d, that the

Senate should advise and consent that the nominee

should be appointed; and, 3d, that, in pursuance of

such nomination and such advice and consent, the

appointment should be actually made.

The nomination is not an appointment; nor is that

nomination followed by the signification of the ad-

vice and consent of the Senate, that it should be made

sufficient of themselves to confer upon a citizen an

office under the constitution. They serve but to indi-

cate the purpose of the President to appoint, and the

consent of the Senate that it should be effectuated;

but they do not divest the executive authority of the

discretion to withhold the actual appointment from

the nominee. To give a public officer the power to

act as such, an appointment must be made in pursu-

ance of the previous nomination and advice and con-

sent of the Senate, the commission issued being the

evidence that the purpose of appointment signified

by the nomination has not been changed.

4 Op. Atty. Gen. 217, 219-20 (1843). For judicial officers,

such as those involved in Marbury itself, the appointment is

manifested by the President’s signing of a commission. See

also United States v. Le Baron, 60 U.S. (19 How.) 73, 78, 15

L.Ed. 525 (1856). However, the granting of a commission is

not always required for a Presidential appointment. The

Court noted that, “[i]n order to determine whether [an offi-

cer] is entitled to [a] commission, it becomes necessary to

enquire whether he has been appointed to the office.” Mar-

bury, 5 U.S. (1 Cranch) at 155. The Court ruled:

The appointment being the sole act of the president,

42a ,

must be completely evidenced, when it is shown that

he has done every thing to be performed by him.

Some point of time must be taken when the power of

the executive over an officer ... must cease. That

point of time must be when the constitutional power

of appointment has been exercised. And this power

has been exercised when the last act, required from

the person possessing the power, has been per-

formed.

Id. at 157. In Marbury, the “last act to be done by the presi-

dent” to show that Marbury had in fact been appointed was

“the signature of the commission.” /d However, the Court

noted that, “if an appointment was to be evidenced by any

public act, other than the commission, the performance of

such public act would create the officer.” /d. at 156.

The actual process followed with respect to senior mili-

tary officers follows the constitutional design. The President

nominates officers from the promotion iist provided to him

by the military department, and those officers are confirmed

by the Senate.’ In accordance with the Constitution, the

President must then make a public act of appointment for an

officer to be promoted.

In the case of a promotion to the grade of rear admiral,

the final public act of appointment is the signing and issu-

ance of the letter of appointment by the Special Assistant for

Flag Officer Management and Distribution on behalf of the

” As noted above, appointments 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).

43a

President. Although the letter of appointment is typically

accompanied by a certificate of appointment, which is the

formal document most like a commission for promoted naval

officers, the certificate is not required.

“(T]he Special Assistant must have specific authority”

from the Secretary of the Navy to sign and issue a letter of

appointment. (Supp. Br. for Def.-Appellee at 3,) Although

there is apparently no express delegation from the President

to the Secretary of the Navy pursuant to 3 U.S.C. § 301 of

the authority to appoint naval officers on behalf of the Presi-

dent, such an express delegation is not required for the letter

to serve as the public act of appointment required by the

Constitution. The statute provides:

This chapter [3 U.S.C. § 301 et seq.] shall not be

deemed to limit or derogate from any existing or in-

herent right of the President to delegate the perform-

ance of functions vested in him by law, and nothing

herein shall be deemed to require express authoriza-

tion in any case in which such an official would be

presumed in law to have acted by authority or direc-

tion of the President.

3 U.S.C. § 302. We have previously held that, in view of

section 302, the President need not expressly delegate au-

thority. See Law v. United States, 11 F.3d 1061, 1067

(Fed.Cir.1993) (holding that the Secretary of Transportation

had properly removed a Coast Guard officer’s name from a

promotion list, even though such authority had not been ex-

pressly delegated by the President).

The Supreme Court has assumed that the authority to ap-

point military officers can be delegated. See, e.g., Orloff v.

Willoughby, 345 U.S. 83, 90, 73 S.Ct. 534, 97 L.Ed. 842

(1953) (“It is obvious that the commissioning of officers in

44a

the Army is a inatter of discretion within the province of the

President as Commander in Chief.... Petitioner, like every

conscript, was inducted as a private. To obtain a change of

that status requires appointment by or under authority of the

President.” (emphasis added)); United States v. Moore, 95

U.S. 760, 762, 24 L.Ed. 588 (1877) (“The place of passed

assistant-surgeon is an office, and the notification by the Sec-

retary of the Navy was a valid appointment to it.” (emphasis

added)).

Our predecessor court addressed the issue more directly

in O'Shea v. United States, 28 Ct. Cl. 392 (1893). In

O'Shea, the Secretary of War informed O’Shea on Novem-

ber 21, 1887, “that the President of the United States has ap-

pointed you post chaplain in the service of the United

States.” Jd. at 398. Nevertheless, another person was nomi-

nated for the position and appointed to fill the vacancy on

March 5, 1888. See id. at 399. O’Shea claimed that he had

been appointed to the position by the Secretary of War’s let-

ter, and sought pay for the position from November 24,

1887, to March 5, 1888. See id The Court of Claims held

that the Secretary of War’s letter served as O’Shea’s ap-

pointment:

[O’Shea’s] appointment is in the form then used for

recess appointments to the Army; the President had

the power to make the appointment, and the act of

the Secretary [of War] (which expressly declares that

the President had made the appointment) is conclu-

sive evidence of the fact that it was made.

Id. at 401. As in O'Shea, the letter from the Special Assis-

tant for Flag Officer Management and Distribution expressly

states that the appointment is made by the President: “The

President of the United States has appointed you to the grade

of Rear Admiral (Upper Half) (O-8).” (Supp. Br. for Def.-

45a

Appellee at 2.) Thus, the signing and issuance of a letter of

appointment is the final public act for a naval officer to be

promoted to rear admiral. The complaint in this case does

not allege that a letter of appointment promoting the appel-

lant to rear admiral was signed and issued, and there is no

evidence that any such appointment letter was in fact signed

and issued.

]

However, the appellant contends that he was automati-

cally appointed to the grade of rear admiral by virtue of 10

U.S.C. § 624(a)(2). 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 competi-

tive category are needed. Promotions shail be

made in the order in which the names of officers

appear on the promotion list and after officers pre-

viously selected for promotion in that competitive

category have been promoted.

10 U.S.C. § 624(a)(2) (emphases added). Although section

624(a) refers to the “promotion” of an officer, section 624(b)

provides that “[a] regular officer who is promoted under this

section is appointed in the regular grade to which promoted.”

Id. § 624(b) (emphasis added). In addition, section 624(d)

prescribes the procedure for delaying “the appointment of an

officer under this section.” Jd. § 624(d). The appellant ar-

gues that, pursuant to section 624, his appointment was

automatic once he was confirmed by the Senate and a rear

admiral position became vacant while his name was at the

top of the promotion list. However, the language of the stat-

ute does not provide for automatic appointment without ac-

tion by the President. Rather, the statute provides that ap-

46a

pointments are made “by the President, by and with the ad-

vice and consent of the Senate.” Jd. § 624(c); see also U.S.

Const. art. II, § 2, cl. 2.

Nor does the legislative history provide any reason here

to believe that Congress intended the statute to provide for

automatic appointments. Both the House and Senate reports

focus on providing uniform promotion procedures for all

branches of the armed forces. See, e.g., H.R. Rep. No. 96-

1462, at 3 (1980), reprinted in 1980 U.S.C.C.A.N. 6333,

6334 (stating that the bill was meant to “[p]rovide uniform

laws for promotion procedures for officers in the separate

services”); S. Rep. No. 96-375, at 1 (1979) (stating that the

bill was meant to “[p}Jrovide uniform laws governing officer

promotions in each military service”). Neither report dis-

cusses an attempt to ensure that those officers placed on pro-

motion lists would automatically be appointed as part of such

a uniform statutory scheme. In addition, the House Report

states that the bill was intended to “provide common general

authority for the permanent appointment of officers by the

President with the advice and consent of the Senate.” H.R.

Rep. No. 96-1462, at 36, reprinted in 1980 U.S.C.C.A.N. at

6367 (emphasis added). Therefore, the legislative history

does not show that Congress intended to provide for auto-

matic appointments.

In any event, Congress could not have permissibly al-

tered the appointment process set forth in the Constitution by

providing for automatic appointments. The limited role for

Congress in the appointment process is specified in the Con-

stitution itself, which provides only that Congress may vary

the process for “inferior Officers.” U.S. Const. art. II, § 2,

cl. 2 (“[T}he 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 Depart-

ments.”). Protecting the role of the President in the ap-

47a

pointment process from legislative encroachment was in fact

one of the goals of the Constitutional Convention. See Buck-

ley v. Valeo, 424 U.S. 1, 128-31, 96 S.Ct. 612, 46 L.Ed.2d

659 (1976); see also Weiss, 510 U.S. at 184-87, 114 S.Ct.

752 (Souter, J., concurring); Freytag v. Comm’r of Internal

Revenue, 501 U.S. 868, 883-85, 111 S.Ct. 2631, 115 L.Ed.2d

764 (1991).

In Buckley, the Court considered the constitutionality of

the Federal Election Campaign Act Amendments of 1974,

Pub. L. No. 93-443, § 208(a), 88 Stat. 1263, 1280-81, which

provided for a Federal Election Commission composed of

six voting members, two of whom were to be appointed by

the President pro tempore of the Senate, and two of whom

were to be appointed by the Speaker of the House of Repre-

sentatives. See Buckley, 424 U.S. at 126, 96 S.Ct. 612. The

Court held this provision unconstitutional because the mem-

bers of the commission, who qualified as officers of the

United States, were not appointed pursuant to the constitu-

tional appointment process. See id. (“[A]ny appointee exer-

cising significant authority pursuant to the laws of the United

States is an ‘Officer of the United States,’ and must, there-

fore, be appointed in the manner prescribed by § 2, cl. 2, of

[Article IT].”).

Similarly, the Court in Springer v. Philippine Islands,

277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), considered

Congress’s attempt in the Organic Act, ch. 416, 39 Stat. 545

(1916), to create a government for the Philippine Islands in

which the legislative branch had the power to “provide for

the appointment and removal of the heads of the executive

departments by the Governor General.” Springer, 277 U.S.

at 201, 48 S%, 480 (quoting Organic Act, ch. 416, § 22, 39

Stat. 545, $33 ¢1916)). The Court held this provision uncon-

Stitutional, stating: “It may be stated ..., as a general rule in-

herent in the American constitutional system, that, unless

48a

otherwise expressly provided or incidental to the powers

conferred, the legislature cannot exercise ... executive ...

power.” Jd. The Court further ruled: “Legislative power, as

distinguished from executive power, is the authority to make

laws, but not to enforce them or appoint the agents charged

with the duty of such enforcement. The latter are executive

functions.” /d. at 202, 48 S.Ct. 480 (emphasis added). The

Court has consistently prohibited attempts by Congress to

exercise the appointment power, which properly lies with the

President, holding that, “while Congress may create an of-

fice, it cannot appoint the officer.” Weiss, 510 U.S. at 174,

114 S.Ct. 752 (quoting Shoemaker, 147 U.S. at 300, 13 S.Ct.

361). Thus, military officers must be appointed pursuant to

the constitutional process, which requires appointments at

the discretion of the President, not automatic appointments

pursuant to statute.*

Finally, even though the statute cannot provide for auto-

matic appointments, we must consider whether the statute

can be read as compelling appointment in accordance with

the statutory scheme.

In general, the subject of military promotions is beyond

the competence of courts to review. See, e.g., Orloff, 345

U.S. at 91, 73 S.Ct. 534; Adkins v. United States, 68 F.3d

1317, 1324 (Fed.Cir.1995) (“Courts will not interject them-

selves into the promotion process.”). However, the Military

Pay Act, 37 U.S.C. § 204 (2000), provides for suit in the

Court of Federal Claims when the military, in violation of

* Although Congress may permissibly change an officer's pay and

direct that an officer be paid as though he had been appointed to a higher

grade, it cannot change an officer's grade, which requires an appoint-

ment. See Wood v. United States, 107 U.S. (17 Otto) 414, 417, 18 Ct. Cl.

761, 2 S.Ct. 551, 27 L.Ed. $42 (1882).

49a

the Constitution, a statute, or a regulation, has denied mili-

tary pay. See, e.g. Holley v. United States, 124 F.3d 1462,

1465 (Fed.Cir.1997); Sanders v. United States, 219 Ct. Cl.

285, 594 F.2d 804, 810-11 (1979) (en banc). The Correc-

tions Board statute, 10 U.S.C. § 1552, provides for correc-

tion of military records if a promotion has been improperly

denied (and for the convening of special selection boards in

appropriate cases to determine whetlier the officer should be

promoted), and for judicial review of the Board’s decision.

See Richey v. United States, 322 F.3d 1317, 1323-25

(Fed.Cir.2003); Porter v. United States, 163 F.3d 1304,

1311-12 (Fed.Cir.1998); Sanders, 594 F.2d at 810- 11; see

also Adkins, 68 F.3d at 1326; Law, 11 F.3d at 1064. Because

the Military Pay Act is a money-mandating statute, the gen-

eral rule “that one is not entitled to the benefit of a position

until he has been duly appointed to it,” United States v. Tes-

tan, 424 U.S. 392, 402, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976),

is inapplicable.” In such cases, redress may be afforded for a

promotion improperly denied. It is apparently assumed that

the constitutionally-mandated steps in the appointment proc-

ess--nomination, confirmation, and actual appointment--

would be followed absent improper action by subordinate

officials, and that the rare exercise of Presidential (or Senate)

discretion not to make the appointment creates no Article III

bar to the action in the Court of Federal Claims. See Glidden

Co. v. Zdanok, 370 U.S. 530, 568-71, 82 S.Ct. 1459, 8

L.Ed.2d 671 (1962); see also Chicago & S. Air Lines v.

* Testan prohibited a claim for retroactive benefits pursuant to the

Classification Act, 5 U.S.C. § 5101 et seg. (2000), which the Court held

was not money-mandating, as is required for the Court of Federal Claims

to take jurisdiction pursuant to the Tucker Act, 28 U S.C. § 1491 (2000).

424 U.S. at 399-400, 96 S.Ct. 948. The Court held that, because the

Classification Act was not money-mandating, it did not alter the “estab-

- lished rule ... that one is not entitled to the benefit of a position until he

has been duly appointed to it.” /d at 402, 96 S.Ct. 948. Unlike Testan,

there is a money-mandating statute here--the Military Pay Act.

50a

Waterman S.S. Corp., 333 U.S. 103, 113-14, 68 S.Ct. 431, 92

L.Ed. 568 (1948).

The appellant argues that the Secretary’s action here, de-

clining to follow the Board’s decision recommending his

promotion, is contrary to law. This case, however, is funda-

mentally different from the cases on which the appellant re-

lies. The appointment was not derailed as a result of action

by a subordinate official acting in his own authority, but by

the President, who decided not to make the appointment.

Such action by the President or an officer acting for the

President is simply unreviewable. See, e.g., Orloff 345 U.S.

at 92, 73 S.Ct. 534; Curry v. United States, 221 Ct. Cl. 741,

609 F.2d 980, 983 (Ct. C1.1979); Cooper v. United States,

203 Ct. Cl. 300, 303 (1973); D’Arco v. United States, 194 Ct.

Cl. $11, 441 F.2d 1173, 1175 (1971).

The Constitution contemplates that, after confirmation,

the President may refuse to execute the appointment. All

Presidential appointments, particularly those to senior posi-

tions, involve a discretionary decision. What the Supreme

Court has said with respect to appointments generally applies

particularly in this context:

The appointment to an official position in the Gov-

ernment, even if it be simply a clerical position, is

not a mere ministerial act, but one involving the ex-

ercise of judgment. The appointing power must de-

termine the fitness of the applicant; whether or not

he is the proper one to discharge the duties of the po-

sition. Therefore it is one of those acts over which

the courts have no general supervising power.

Keim v. United States, 177 U.S. 290, 293, 35 Ct. Cl. 628, 20

S.Ct. 574, 44 L.Ed. 774 (1900). Our predecessor court has

specifically held that the President or an officer acting for

S5la

him may remove an officer’s name from a promotion list “at

any time before the appointment is consummated.” D’Arco,

441 F.2d at 1175. In D'Arco, the Secretary of the Navy, act-

ing for the President, removed D’Arco’s name from a pro-

motion list after he had been confirmed by the Senate. /d. at

1174. The Court of Claims upheid this action, holding that,

in accordance with Marbury, the President (and the Secretary

acting for the President) “could still refuse to complete the

appointment, after Senate confirmation, by failing to prepare

or sign the commission.” Jd. at 1175; see also Doggett v.

United States, 207 Ct. Cl. 478, 482 (1975) (“We believe that

in the absence of any contrary requirement, a power ... to

recommend a promotion, implies a power to withdraw the

recommendation at any time before it is acted on.” (empha-

sis added)).

The current statutory language itself does not clearly

compel the President to appoint military officers. As the ap-

pellant notes, the statute provides that officers “shall be pro-

moted to the next higher grade when additional officers in

that grade and competitive category are needed.” 10 U.S.C.

§ 624(a)(2) (emphasis added); see also S. Rep. No. 96-375,

at 21 (“[A]fter confirmation by the Senate and unless a pro-

motion is delayed for good reason, promotions shall be made

to fill vacancies in order of seniority.” (emphasis added)).—

This language contrasts with the language of the previous

statute, which provided that “(t]he President may fill vacan-

cies in any grade in the line of the Regular Navy” in accor-

dance with the statutory provisions. 10 U.S.C. § 5780

(1976) (repealed 1980) (emphasis added). Our predecessor

court interpreted the previous statute’s language in D’Arco

as permitting the President to remove an officer’s name from

a promotion list “at any time before the appointment is con-

summated.” 441 F.2d at 1175; see also Doggett, 207 Ct. Cl.

at 482. In D’Arco, the court held that the provision that

52a

“[t]he President may terminate any temporary appointment,”

10 U.S.C. § 5779 (1964) (repealed 1980), permitted the

President (or the Secretary acting for the President) to with-

hold a commission. 441 F.2d at 1175.

Although DOPMA changed the statutory language, there

is no indication in the legislative history that Congress in-

tended to cabin the President’s authority or to overrule our

predecessor court’s decision in D’Arco. As noted above, the

House Report states that the bill was intended to “provide

common general authority for the permanent appointment of

officers by the President with the advice and consent of the

Senate.” H.R. Rep. No. 96-1462, at 36 (1980), reprinted in

1980 U.S.C.C.A.N. 6333, 6367. Indeed, the statute provides

that “[t]he President may remove the name of any officer

from a list of officers recommended for promotion by a se-

lection board convened under this chapter.” 10 U.S.C. §

629(a). In any event, Congress does not have the authority

to require the President to exercise his appointment power;

such authority would be akin to an exercise by Congress of

the appointment power itself, which is prohibited.

Nor does the judiciary have a role in reviewing such de-

cisions. The President’s decision not to appoint is a discre-

tionary act that cannot be reviewed by a court. See, e.g,

Marbury, 5 U.S. (1 Cranch) at 165-67. In Marbury, the

Court held that it could not review the President’s exercise of

his appointment power because it is discretionary: “The

power of nominating to the senate, and the power of appoint-

ing the person nominated, are political powers, to be exer-

cised by the president according to his own discretion.” /d. at

166-67. Similarly, the Court in Dalton v. Specter, 511 U.S.

462, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994), held that it

could not review the President’s discretionary determination

of which military bases to close pursuant to the Defense

Base Closure and Realignment Act of 1990, 10 U.S.C. §

53a

2687, even if subordinate officials had failed to comply with

legal requirements. /d at 476-77, 114 S.Ct. 1719. The

Court held: “Where a statute ... commits decisionmaking to

the discretion of the President, judicial review of the Presi-

dent’s decision is not available.” Jd. at 477, 114 S.Ct. 1719.

The same is necessarily true where the President is afforded

discretion by the Constitution itself. The President’s deci-

sion here whether or not to exercise his appointment power

is discretionary, and we hold that the President cannot be

compelled to appoint military officers.

Therefore, the appellant was never appointed to the grade

of rear admiral, and we cannot review the President’s deci-

sion not to appoint him. Because he was never appointed,

the appellant is not entitled to the pay and benefits he would

have received if he had been promoted to that grade. We

therefore affirm the Court of Federal Claims’ denial of that

relief.

Finally, the appellant contends that he is entitled to

$15,000 of MASP because the pay was denied on the basis

of Vice Admiral Koenig’s improper fitness report. However,

that issue is not justiciable. The Court of Federal Claims

may only review a denial of MASP “for compliance with

established procedures”; it may not review “the substantive

merits of the decision.” Voge, 844 F.2d at 779. In Voge, we

held that “there are no tests or standards for the court to ap-

ply in determining whether the decision to terminate

[M]ASP is correct. Instead, Congress provided only that the

determination to deny [MJASP may be made ‘at any time’

by the Secretary.” /d. at 780 (quoting 37 U.S.C. § 302(c)(2))

(citations omitted). The appellant argues that Vice Admiral

Koenig violated regulations in formulating the fitness report,

but he does not contend that the Secretary violated estab-

lished procedures in denying MASP. Therefore, the Court of

54a

Federal Claims correctly held that it could not review the

Secretary’s decision to deny the appellant’s request for

MASP because the issue was nct justiciable. Accordingly,

the court’s denial of the appellant’s claim for MASP is af-

firmed.

CONCLUSION

For the foregoing reasons, we affirm the decision of the

Court of Federal Claims.

AFFIRMED.

COSTS

No costs.

55a

APPENDIX D

EVELYN L. LEWIS, Plaintiff-Appellant, v. UNITED

STATES, Defendant-Appellee.

05-5155

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

October 26, 2006, Decided

October 26, 2006, Filed

OPINION:

ORDER

A petition for rehearing en banc having been filed by the

Appellant, and the matter having first been referred as a peti-

tion for rehearing to the panel that heard the appeal, and

thereafter the petition for rehearing en banc having been re-

ferred to the circuit judges who are in regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED and it is further

ORDERED that the petition for rehearing en banc be,

and the same hereby is, DENIED.

The mandate of the court will issue on November 2,

2006.

56a

APPENDIX E

STATUTORY PROVISIONS INVOLVED

The relevant sections of DOPMA are codified at 10 U.S.C.

§§ 611, 618, 624, 629, and 741, as follows:

§ 611. Convening of selection boards

(a) Whenever the needs of the service require, the Secretary

of the military department concerned shall convene selection

boards to recommend for promotion to the next higher per-

manent grade, under subchapter II of this chapter, officers on

the active-duty list in each permanent grade from first lieu-

tenant through brigadier general in the Army, Air Force, or

Marine Corps and from lieutenant (junior grade) through rear

admiral (lower half) in the Navy. The preceding sentence

does not require the convening of a selection board in the

case of officers in the permanent grade of first lieutenant or,

in the case of the Navy, lieutenant (junior grade) when the

Secretary concerned recommends for promotion to the next

higher grade under section 624(a)(3) of this title all such of-

ficers whom the Secretary finds to be fully qualified for pro-

motion.

(b) Whenever the needs of the service require, the Secretary

of the military department concerned may convene selection

boards to recommend officers for continuation on active duty

under section 637 of this title or for early retirement under

section 638 of this title.

57a

and (b) shall be under regulations prescribed by the Secretary

of Defense.

§ 618. Action on reports of selection boards

(a)(1) Upon receipt of the report of a selection board submit-

ted to him under section 617(a) of this title, the Secretary of

the military department concerned shall review the report to

determine whether the board has acted contrary to law or

regulation or to guidelines furnished the board under section

615(b) of this title. Following such review, unless the Secre-

tary concerned makes a determination as described in para-

graph (2), the Secretary shall submit the report as required by

subsection (b) or (c), as appropriate.

(2) If, on the basis of a review of the report under para-

graph (1), the Secretary of the military department concerned

determines that the board acted contrary to law or regulation

or to guidelines furnished the board under section 615(b) of

this title, the Secretary shall return the report, together with a

written explanation of the basis for such determination, to

the board for further proceedings. Upon receipt of a report

returned by the Secretary concerned under this paragraph,

the selection board (or a subsequent selection board con-

vened under section 611(a) of this title for the same grade

and competitive category) shall conduct such proceedings as

may be necessary in order to revise the report to be consis-

tent with law, regulation, and such guidelines and shall re-

submit the report, as revised, to the Secretary in accordance

with section 617 of this title.

(b)(1) After completing the requirements of subsection (a),

the Secretary concerned, in the case of the report of a selec-

tion board that considered officers who are serving, or have

58a

served, in joint duty assignments, shall submit the report to

the Chairman of the Joint Chiefs of Staff.

(2) The Chairman, in accordance with guidelines furnished

to the Chairman by the Sec

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