Dysart v. U.S., 03-5106.

• Decision Date: 26 May 2004
• Docket Number: No. 03-5106.,03-5106.
• Citation: 369 F.3d 1303
• Parties: Rear Admiral (LH) Noel K. DYSART, Medical Corps, U.S. Navy (Ret.), Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

369 F.3d 1303

Rear Admiral (LH) Noel K. DYSART, Medical Corps, U.S. Navy (Ret.), Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 03-5106.

United States Court of Appeals, Federal Circuit.

DECIDED: May 26, 2004.

COPYRIGHT MATERIAL OMITTED

Charles W. Gittens, Law Offices of Charles W. Gittins, P.C., of Middletown, VA, argued for plaintiff-appellant.

Brent M. McBurney, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Bryant G. Snee, Assistant Director. Of counsel on the brief was Gregory R. Bart, Lt. Cmdr., United States Navy, Office of the Judge Advocate General, of Washington, DC. Of counsel was Edward J. Duffy, Lt. Col., United States Marine Corps, Office of the Judge Advocate General, of Washington, DC.

Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP, of Washington, DC, argued for amici curiae. With him on the brief were Matthew S. Freedus and Todd A. Wynkoop.

Before RADER, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

On June 12, 1998, the President removed appellant Rear Admiral (Lower Half) Noel K. Dysart from the promotion list for the grade of rear admiral in the United States Navy ("Navy"). The appellant filed suit in the Court of Federal Claims, asserting that he had been automatically promoted to that grade as of September 1, 1997, and that he was entitled to the corresponding pay and benefits. In addition, the appellant sought reinstatement to the Navy and asserted a separate claim for medical additional special pay ("MASP"). The Court of Federal Claims granted summary judgment for the government on the administrative record. Dysart v. United States, No. 02-294C (Fed.Cl. May 5, 2003). We affirm.

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 appoint "Officers of the United States." U.S. Const. art. II, § 2, cl. 2. Three separate actions are ordinarily required for a person to be appointed to office pursuant to this provision: the President's nomination, confirmation by the Senate, and the President's appointment after Senate confirmation. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155-56, 2 L.Ed. 60 (1803). In accordance with this process, the President first selects a nominee and sends the nomination to the Senate. The Senate acts on the nomination and determines whether or not to confirm the nominee. If the nominee is confirmed, the President appoints the officer and signs a commission or performs some other public act as evidence of the officer's appointment. See id. at 157. The Constitution also provides that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const. art. II, § 2, cl. 2.

A naval officer is an "Officer of the United States" in accordance with Article II. See United States v. Mouat, 124 U.S. 303, 307, 23 Ct.Cl. 490, 8 S.Ct. 505, 31 L.Ed. 463 (1888) (holding that a naval officer who "holds his place by virtue of an appointment by the president" is an "officer of the United States"). The permanent promotion of a military officer to a higher grade, as well as his initial appointment, is subject to this constitutional process. See Weiss v. United 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"), aff'g 36 M.J. 224, 227 (C.M.A.1992) ("All regular officers of the military services are appointed by the President and confirmed by the Senate.... Active duty military officers are appointed and confirmed again upon each promotion to a grade above pay grade O-3."); Shoemaker v. United States, 147 U.S. 282, 300-01, 13 S.Ct. 361, 37 L.Ed. 170 (1893).¹

Beginning in 1916, Congress attempted to regularize the promotion process for military officers, including naval officers. In particular, Congress directed the Navy to use a process involving selection boards for promoting naval officers to fill vacancies in the grades of commander, captain, and rear admiral. See Act of Aug. 29, 1916, ch. 417, 39 Stat. 556, 578-79. Pursuant to the statute, a selection board selected officers in a particular grade to fill vacancies in the next higher grade and submitted a report with its recommendations "to the President for approval or disapproval." Id., 39 Stat. at 579. The selection board process was expanded in 1947 to encompass the promotions of all naval officers to grades above lieutenant (junior grade). See Officer Personnel Act of 1947, § 104(a), 61 Stat. 795, 800.

In 1980, the Defense Officer Personnel Management Act ("DOPMA"), Pub.L. No. 96-513, 94 Stat. 2835 (1980), was enacted. DOPMA provides for selection boards, which recommend officers between the grades of lieutenant (junior grade) and rear admiral (lower half)² (in the Navy) and first lieutenant and brigadier general (in the Army, Air Force, and Marine Corps) for promotion to the next higher permanent grade. See 10 U.S.C. § 611(a) (Supp. I 2001). The board submits its recommendations in a written report to the Secretary of the appropriate military branch. See 10 U.S.C. § 617 (2000). After reviewing the report, the Secretary submits the report "to the Secretary of Defense for transmittal to the President for his approval or disapproval." Id. § 618(c)(1). The statute also requires the Secretary concerned to place the names of the approved officers within particular categories (called "competitive" categories) on a promotion list in order of their seniority once the President has approved the selection board's report. See id. § 624(a)(1). The statute provides:

[O]fficers on a promotion list for a competitive category shall be promoted to the next higher grade when additional officers in that grade and competitive category are needed. Promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted.

Id. § 624(a)(2) (emphases added).

The statute also provides that the Secretary may prescribe regulations that provide for the delay of an officer's 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." Id. § 624(d)(2). Pursuant to this authority, the Secretary has promulgated regulations in paragraph 23 of Secretary of the Navy's Instruction ("Secretary's Instruction") 1420.1A. The statute and regulations impose two limitations on the Secretary's authority to delay an officer's appointment in accordance with subsection 624(d). First, the officer whose appointment has been delayed must be "given written notice of the grounds for the delay, unless it is impracticable to give such written notice before the effective date of the appointment, in which case such written notice shall be given as soon as practicable." Id. § 624(d)(3). Second, the officer's appointment "may not be delayed under this subsection for more than six months after the date on which the officer would otherwise have been appointed unless the Secretary concerned specifies a further period of delay." Id. § 624(d)(4). The regulations include similar provisions. See Secretary's Instruction 1420.1A ¶ 23 (1991).

The current statute, like its predecessor, states that appointments are made "by the President, by and with the advice and consent of the Senate," id. § 624(c); 10 U.S.C. § 5791 (1976) (repealed 1980).³ The Navy follows a formal process of nomination, confirmation, and appointment for its officers, apparently designed to take account of the constitutional requirements. In accordance with the statute, the Secretary of the Navy convenes selection boards and approves their selections. See 10 U.S.C. §§ 611(a), 618(a). The selections are forwarded to the Chairman of the Joint Chiefs of Staff, if required; the Secretary of Defense; and the President, who may remove names from the recommended list. See id. § 618(b)-(d). The President then nominates officers from the recommended list and forwards the nominations to the Senate. See generally Department of Defense Instruction 1320.4 (1995) (providing regulations governing the nomination processes of the military branches). If an officer is not confirmed by the Senate, his name must be removed from the promotion list. 10 U.S.C. § 629(b). Once the officer has been confirmed by the Senate, he must next be appointed. For example, when an officer is appointed to the grade of rear admiral, the Special Assistant for Flag Officer Management and Distribution prepares a letter of appointment, which can only be signed with the express approval of the Secretary of the Navy, acting for the President. This letter is issued to the appointee, along with a certificate of appointment. The appointee need not formally accept the appointment, as "[a]n officer who is appointed to a higher grade under section 624 of this title is considered to have accepted such appointment on the date on which the appointment is made unless he expressly declines the appointment." 10 U.S.C. § 626(a). The Secretary concerned determines the date of the appointment, pursuant to 10 U.S.C. § 741(d).⁴ 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 appellant was nominated by the President to be rear admiral on March 20, 1996. See 142 Cong. Rec. 5,626 (1996). The...