Antonellis v. United States

• Decision Date: 18 July 2013
• Docket Number: No. 2012–5140.,2012–5140.
• Citation: 723 F.3d 1328
• Parties: James ANTONELLIS, Plaintiff–Appellant, v. UNITED STATES, Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

723 F.3d 1328

James ANTONELLIS, Plaintiff–Appellant,

v.UNITED STATES, Defendant–Appellee.

No. 2012–5140.

United States Court of Appeals, Federal Circuit.

July 18, 2013.

Jeffrey A. Vogelman, Thomas, Ballenger, Vogelman & Turner, P.C., of Alexandria, VA, argued for plaintiff-appellant.

Lauren S. Moore, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director.

Before DYK, BRYSON, and REYNA, Circuit Judges.

DYK, Circuit Judge.

James Antonellis, an officer in the United States Navy Reserve, appeals from a decision of the United States Court of Federal Claims (“Claims Court”) dismissing his back pay claim for failure to state a claim upon which relief can be granted. See Antonellis v. United States, 106 Fed.Cl. 112 (2012). Antonellis alleged that he was entitled to back pay under the Military Pay Act, 37 U.S.C. § 206(a), because the Navy acted improperly in failing to assign him to a pay billet. The Claims Court dismissed Antonellis' claim as nonjusticiable, reasoning that there were no standards by which it could review the Navy's assignment decisions. We affirm.

Background

Antonellis has been a member of the Navy Reserve since 1986. There is no dispute that he “has had a respectable and upstanding career with the Navy.” Antonellis, 106 Fed.Cl. at 113. Antonellis is a member of the Ready Reserves, which includes the Selected Reserve and the IndividualReady Reserve. Id. The Selected Reserve is a paid unit; the Individual Ready Reserve is unpaid. Id. The Individual Ready Reserve includes Volunteer Training Units, in which members perform their reserve duties without pay. See Bureau of Naval Personnel Instruction 1001.39F, Ch. 3, § 301 (Sept. 17, 2007). Antonellis appears to contend that there is no relevant difference in the duties performed by paid and unpaid reserve members. See Compl. ¶ 7, Antonellis v. United States, 106 Fed.Cl. 112 (2012) (No. 11–cv–666), ECF No. 1 (“Compl.”); Oral Arg. at 35:12–35:32, Antonellis v. United States, No. 2012–5140 (Fed.Cir. argued May 7, 2013) (“Oral Arg.”).

The National Command and Senior Officer NonCommand Billet Screening and Assignment Board (the “APPLY Board”) possesses delegated authority to appoint officers to Selected Reserve billets. Antonellis, 106 Fed.Cl. at 113–14. It assigns officers to billets pursuant to a policy guidance letter issued by the Commander of the Navy Reserve Forces Command (“Commander”). Id. The Commander's guidance letter directs the APPLY Board to convene panels to evaluate billet candidates based on specified criteria and to “select the best qualified Officer” for each billet. J.A. 30; Antonellis, 106 Fed.Cl. at 114.

The Commander's guidance letter also specifies the selection process. The APPLY Board member responsible for each application “prepare[s] and deliver[s] a briefing” regarding the application and recommends a numerical “confidence factor” to be “voted on by each [APPLY] Board member.” J.A. 29–30. Confidence factors range from 0 to 100 percent, with a score of 0 percent indicating that the applicant is “[n]ot competitive with other Officers” and a score of 100 percent indicating that the applicant is an “[o]utstanding Officer” who “should be screened for assignment.” J.A. 30.

The Commander's guidance letter also specifies the criteria to be used in evaluating each applicant. It lists “[p]roven and sustained superior performance in command or other leadership positions” and “successful performance and leadership in combat conditions” as important factors and states that the APPLY Board “shall give favorable consideration to those Officers who have displayed superior performance while serving in Individual Augmentee (IA) assignments in direct support of the Global War on Terrorism.” J.A. 32–33. The letter further indicates that the APPLY Board “shall give favorable consideration to those Officers with[ ] relevant graduate education, experience in specialized areas, and professional military education.” J.A. 33. The letter does not specify, however, the weight to be given to each criterion in assigning the numerical confidence factor.

The confidence factor provides the basis upon which applicants are then ranked on a “precedence list.” J.A. 30. “The precedence list ... establish [es] the sequence in which [applicants are] considered for assignments.” Id. The Board then conducts deliberations regarding each assignment. The Commander's guidance letter states that the APPLY Board's

goal [is] to select the best qualified Officer to a billet that the majority of the Board members consider the best match for the preference and qualifications of the Officer, the mission of the unit, and the requirements of the Supported command and billet.

Id.

From 2009 through 2011, Antonellis submitted sixty-nine applications for Selected Reserve billets to the APPLY Board, but he was not assigned to any Selected Reserve billet. Antonellis, 106 Fed.Cl. at 113. During that period, Antonellis was instead assigned to a Volunteer Training Unit in the Individual Ready Reserve and he performed his reserve duties without pay. Id.

On October 12, 2011, Antonellis filed suit against the United States in the Claims Court. He attached the Commander's guidance letter to his complaint and asserted that, based on his outstanding service record and the standards described in the Commander's guidance letter, he “has been clearly entitled to a pay billet during the period of time he has ... been turned down for such.” Compl. ¶ 8. He further alleged that the APPLY Board's decision not to assign him to a Selected Reserve pay billet was “arbitrary, capricious, [and] unsupported by substantial evidence.” Id. He sought over $64,700 in back pay. Antonellis, 106 Fed.Cl. at 114. The Claims Court found Antonellis' claim nonjusticiable. Id. at 116. It assumed, without deciding, that the Commander's guidance letter was legally binding, but it found that the letter merely “calls for the Board to make a subjective determination of which officers are the ‘best’ qualified and the ‘best match’ for each billet,” and thus failed to provide any justiciable standards for the court to apply. Id. at 116 & n. 2. The Claims Court therefore dismissed Antonellis' complaint for failure to state a claim upon which relief can be granted. Id. at 116.

Antonellis timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3). We review de novo the Claims Court's dismissal for failure to state a claim upon which relief can be granted. Cambridge v. United States, 558 F.3d 1331, 1335 (Fed.Cir.2009).

Discussion

I

When applicable, the Tucker Act confers jurisdiction on the Claims Court and waives the United States' sovereign immunity. See Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.2007). However, “[t]he Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part). Here, Antonellis relies on the Military Pay Act as the pertinent money-mandating statute. Although the government appears to have challenged the Claims Court's Tucker Act jurisdiction below, see Antonellis, 106 Fed.Cl. at 114, it does not press that argument on appeal. We in any event must determine that we have jurisdiction. We have long recognized that the Military Pay Act “provides for suit in [the Claims Court] when the military, in violation of the Constitution, a statute, or a regulation, has denied military pay.” Dysart v. United States, 369 F.3d 1303, 1315 (Fed.Cir.2004); see also Sanders v. United States, 594 F.2d 804, 810–11 (Ct.Cl.1979) (en banc). The Claims Court therefore had jurisdiction.

II

The government urges that we should affirm the Claims Court. It argues that even if Antonellis could establish a violation of the instructions set forth in the Commander's guidance letter (and that the letter was legally binding), the Claims Court cannot award him back pay. Alternatively, the government argues that the letter does not set forth judicially cognizable criteria. In order to understand the context of this controversy, some description of prior authority is useful.

Unfortunately, our decisions and those of our predecessor court, the United States Court of Claims, do not always present a clear picture of the remedies available to a service member challenging a decision concerning promotion, separation, or reassignment. Nonetheless, several principles can be distilled from those cases.

First, civilian courts are reluctant to second-guess decisions of the military authorities as to promotion, separation, or reassignment. We have emphasized that “the military is entitled to substantial deference in the governance of its affairs.” Dodson v. United States, 988 F.2d 1199, 1204 (Fed.Cir.1993); see also Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (“[J]udges are not given the task of running the Army.”). We have also noted that there are “thousands of ... routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle with.” Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988). In particular, we have emphasized that “[a] court lacks the special expertise needed to review reserve officers' records and rank them on the basis of relative merit.” Sargisson v. United States, 913 F.2d 918, 922 (Fed.Cir.1990).

Second, if a statute, regulation, or instruction specifies the particular procedure to be followed in personnel actions, and the plaintiff alleges that the...