# Petition for Writ of Certiorari — Lewis v. United States, 128 S. Ct. 42 (2007) (No. 06-1289) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2354%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text ee OO U.S. IN THE Supreme Court of the Anited States EVELYN L. Lewis, M.D., Petitioner, V. 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 i 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. ii TABLE OF CONTENTS Page I vac cesccssinessereneveneveteteresetovevwrerrvederetetnes ] i iisascinsieinkeviracenvcnestosenebinacenesesnrtesoes | CONSTITUTIONAL PROVISIONS, STATUTES, RIE BEE PMY OD cccccesercnseniseresoressoscevreersevores ] SEM MUOMEETS GON SOURS CASE cccccccococessenserucesevensesacesosevvoverns 2 A. FRO SRRROTY SCICIIC « 6.00.00cecrecrescesccesseorseesse 3 B. IE PMIIUIIN «. sccscncoscensocoesrvecvvonsenseseese 9 c. NE FERIOIEY sococesontecossccerotnceseeenoeeretees 10 REASONS FOR GRANTING THE PETITION.............++. 13 I. THE QUESTION PRESENTED IS IMPOR- FREE BP FECURRING cvseccecsercovrsevsssvcecsersscceees 14 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- I CIE ccirsiicestisetecectiniecesiniibevnensia 23 ied DOPMA Does Not Violate Marbury.......... 27 CONCLUSION iV TABLE OF AUTHORITIES Page CASES Barnes v. United States, 473-F 36 1356. OG, Cir. 2007 )....0:.ccscorsscocevssaseesoeses 15, 18 Barnes v. United States, I a IED ss srcicnesvenstnionecetenennenadenciine’ 15, 18 Barnes v. United States, BF ae IES Sicescneniniiinrinesscvsesvricinenpensentnbtn 15, 18 Bowsher v. Synar, |. I a scsi ssunicdsniasesunnbionvaceicenonsioertaieinndn 25 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 Vv TABLE OF AUTHORITIES (continued) Page United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., I car casisn snes vusiendinciaderkinaicaberrexnnente 20 United States v. Hohri, ED inc brisinnc icnevhaionncuivesiseiteiceniiemieiaytetoniia 17 Weiss v. United States, ee eR iciicircccnsencisicieashiaginiiecdinanameniibqenan 26 CONSTITUTIONAL PROVISIONS lai SN INE, Wa WF Wb re ieikeisnsarcistiiensdernnchorunconveios 2, 4, 16, 26 The, OE Bs 0 8. So vviiccdincirnicemnnin Be AP 6, STATUTES AND REGULATIONS OR Sei tere BF OPE E anitss cxdsernsschisnsedibncvaneenias inseasaahpineitiadesoneceed 3,4 Fe Ae OE i otciicnthcscahicssannnenschiiecenanteeianiianbertenedan 4,5, 19 Aes Ne scott tives iecesnicrsivcreanieshdnecerepoteameninntentin passim Beg ee Brinkcasivinsrccxdsdantoncieenvionsutianteienmiendiuanal 8, 25 ic: A GI siiiikcteiinvistcdicrsasusunssbapcmenstpieicnadseanediaiaal 5, 19, 24 ee iE iciscvnindnssnnerivinicldnsdinenottenntindintizeameataeienell 5,19 FP, GAME vsivscscvrncseseciveseiedssdnvecssssennieiusststetentinreretty me Oe FE sks soncicsvinsicsinpiaviacdnenrviasesasethessiienaiaaintn 8, 25 se FE visa csivscincornsdisvcapsiacsnionnisseitepnoniimiameematll 8, 25 ee Wi sido disiedanenincccPicecscdeidseonniectapenionsenine 8, 25 ar Ny We IN av nisscsssasintnneeiabicanacipansiieeasniartaenasettand 4,28 De OE aban iciedacujensstheesavencischiideaimmeabaainatan 4,28 Fs Fe cst ctaccsndnicsecchcdsnidisstiasmeeiumiitadidiataoumienn 17 FF We ai eics Be cckinictinenipsavcceccttnntniiviornstnatenctcinesecapmataeedtanasigian io vi 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 SUIT i issih cibaicranschaaaidesiiininsannacncatinenrtabnieinesninndtoneenenddaniaie 3 REE CEPT CEI BEN coccterierconensndvccsvietcerevensonsvcnine passim OTHER AUTHORITIES Ee COM. FOG. FERS CII TOD wosirecesssceceovseccsssveseccotencesooovesoes 16 Ss Bs PT IEe CRIED eccveesceserscecevitersinasorenteterninenbo 26 145 Cong. Rec. $4068 SR MANES FEE CD ccenicevecsnscevensscdecattaneusenanstnrsnptaniins 9 145 Cong. Rec. $7966 Ot BR BED vvxicssvsceniesoventeiverevacansondinitnensmtvies 9 152 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 Fes POS INOS CF EER seirseisvterscecptievesersoneemedineneentaiin 22 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 2 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- 3 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. 4 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. 5 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 6 “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). 7 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.”). 10 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- 11 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. ; 14 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). 15 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- 16 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- 17 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 18 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. 19 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 20 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). 21 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). 22 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.”). 23 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)). 24 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 25 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, 26 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). 27 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. 28 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”). 29 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 la APPENDIX A Evelyn L. LEWIS, Plaintiff-Appellant, v. 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- 2a 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 3a 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 4a 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). 5a 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 6a (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). I 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. Ta 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- 8a 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.”). 9a 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).® A 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. II 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, v. 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, V. 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 I 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). II A 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2354%3A1. Public record. Not legal advice.