Case: 22-2093 Document: 37 Page: 1 Filed: 02/21/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUIS PINTO,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2093
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01791-EHM, Judge Edward H. Meyers.
______________________
Decided: February 21, 2023
______________________
LUIS PINTO, Williamston, NC, pro se.
JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA
M. MCCARTHY.
______________________
Case: 22-2093 Document: 37 Page: 2 Filed: 02/21/2023
2 PINTO v. US
Before MOORE, Chief Judge, HUGHES and STOLL, Circuit
Judges.
PER CURIAM.
Luis Pinto appeals a decision from the Court of Federal
Claims granting the government’s partial motion to
dismiss and cross-motion for judgment on the
administrative record and denying Mr. Pinto’s motion for
judgment on the administrative record. The trial court
found that Mr. Pinto’s challenge to the Army’s decision not
to promote him was nonjusticiable and that there were no
procedural errors that justified overturning the Army’s
decision. We agree and therefore affirm.
I
Mr. Pinto was commissioned as a Second Lieutenant in
the United States Army in May 2012 when he began a
seven-year active-duty service obligation. In September
2013, Mr. Pinto was subject to an investigation for
“fraternization and for having an improper relationship
with a junior, female enlisted soldier in his unit.”
Defendant-Appellee’s Appendix (D.A.) 1–2. The
investigation resulted in a “flag” in his personnel file, and
while this flag was in place, Mr. Pinto was ineligible for a
promotion to First Lieutenant.
The investigation substantiated the alleged
misconduct, and, due to this misconduct, Mr. Pinto’s
superiors gave him an unfavorable Officer Evaluation
Report that noted his “lack of judgment” and “strongly
recommended” against his promotion. D.A. 2. The Army
also issued a General Officer Letter of Reprimand
regarding his misconduct. Mr. Pinto was required to show
cause for his retention in the military before a Board of
Inquiry. The Board of Inquiry concluded that the
allegations against Mr. Pinto were supported by a
preponderance of the evidence but recommended that,
instead of discharging Mr. Pinto, the Army retain and
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PINTO v. US 3
transfer him to another unit. Thereafter, the Army
removed the flag from Mr. Pinto’s personnel file. Once the
flag was removed, Mr. Pinto became eligible for promotion
to First Lieutenant again. However, in April 2014 and
again in November 2014, Mr. Pinto’s commanders
recommended that he not be promoted to First Lieutenant.
Mr. Pinto appealed this second denial of promotion to the
promotion review authority, Major General Jeffrey Smith.
Major General Smith issued a memorandum stating that
“[Second Lieutenant] Pinto’s further service is not in the
best interests of good order and discipline in this
command.” D.A. 42. Mr. Pinto was then involuntarily
separated from the Army for non-promotion, pursuant to
Army Regulation (AR) 600–8–24 ¶ 5–11.
Mr. Pinto appealed his involuntary separation to the
Army Board for Correction of Military Records (Board),
seeking reinstatement and a retroactive promotion as well
as the correction of his records to reflect that he was
wrongfully denied a promotion and wrongfully separated.
The Board denied Mr. Pinto’s request and found that there
was insufficient evidence to remove the letter of reprimand
and evaluation report from his record and that his other
requests for relief were without merit. Mr. Pinto appealed
that decision to the Court of Federal Claims, which
remanded the case to the Board to issue a new decision that
“fully addresses Mr. Pinto’s promotion and more fully
develops the record.” D.A. 2. The Board subsequently
issued a new decision that reiterated its previous findings.
Mr. Pinto appealed the second decision to the trial court,
asking for placement in an appropriate duty status, a
retroactive promotion to First Lieutenant, back pay for the
rank of First Lieutenant, and a correction of all his military
records. In addition to asking the trial court to review the
Army’s decision not to promote him, Mr. Pinto identified
the following procedural deficiencies that justified his
request for relief: (1) the Army did not issue the
recommendation not to promote him to First Lieutenant
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4 PINTO v. US
until after his promotion eligibility date had passed,
meaning he was automatically promoted to First
Lieutenant; and (2) the Army improperly discharged him
under AR 600–8–24 ¶ 5–11 instead of ¶ 4–2.a.(2). 1
The trial court determined that it did not have
jurisdiction to review the merits of the Army’s decision not
to promote him because “absent a statute or regulation
entitling a service member to a promotion as a matter of
law, the [trial court] has no authority to entertain” claims
relating to promotion decisions in the military. D.A. 5.
Next, the trial court found that the slight delay in the
Army’s decision not to promote Mr. Pinto did not result in
Mr. Pinto automatically being promoted to First
Lieutenant because AR 600–8–29, which addresses officer
promotions, makes it clear that promotions to First
Lieutenant are not automatic. The trial court also found
that there was no error in the Army separating Mr. Pinto
under 600–8–24 ¶ 5–11 because that paragraph addresses
separation due to non-selection for promotion and the other
paragraphs in AR 600–8–24 did not shield Mr. Pinto from
separation.
Mr. Pinto now appeals to this court. We have
jurisdiction under
28 U.S.C. § 1295(a)(3).
II
We review a decision of the Court of Federal Claims to
dismiss for lack of subject matter jurisdiction de novo. Diaz
v. United States,
853 F.3d 1355, 1357 (Fed. Cir. 2017). We
review the trial court’s jurisdictional findings of fact for
clear error. Banks v. United States,
314 F.3d 1304, 1307–
08 (Fed. Cir. 2003). We review a decision of the Court of
Federal Claims granting or denying a motion on the
administrative record de novo and “reapply the statutory
1 Mr. Pinto alleged additional procedural deficien-
cies to the trial court but does not raise those on appeal.
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PINTO v. US 5
review standards.” Chambers v. United States,
417 F.3d
1218, 1227 (Fed. Cir. 2005). We “will not disturb the
decision of [a military] corrections board unless it is
arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.”
Id.
III
We first address the trial court’s determination that it
did not have jurisdiction to review the merits of the Army’s
decision not to promote Mr. Pinto, and then address the
trial court’s decisions regarding the remaining procedural
issues.
A
We have long held that courts cannot review military
decisions not to promote service members. For example, in
Fluellen v. United States, where we considered the
propriety of the Air Force’s decision not to promote an
officer, we stated that
[a] claim of error in a promotion decision presents
a nonjusticiable controversy because there are no
statutory or regulatory standards against which a
court can review such a decision; it relates to a mat-
ter left to the discretion of the military.
225 F.3d 1298, 1304 (Fed. Cir. 2000). We further explained
that “courts lack the expertise needed to review reserve
officer’s records and make military retention decisions. To
reverse the [Board’s] decision would be to second-guess the
board’s determination on no more than speculation.”
Id.
(quotation marks omitted) (citing Murphy v. United States,
993 F.2d 871, 873 (Fed. Cir. 1993) and Sargisson v. United
States,
913 F.2d 918, 922 (Fed. Cir. 1990)).
This case is no different. This court lacks both the
authority and the expertise to question the Army’s decision
not to promote Mr. Pinto. This is especially the case here,
when both parties agree that “none of the material facts
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6 PINTO v. US
appear to be in dispute.” Appellant’s Br. at 15. Although
Mr. Pinto argues that the Army erred in considering his
misconduct when deciding not to promote him, Mr. Pinto
has not cited to any statute or authority that would allow
this court or the trial court to review the merits of the
Army’s decision to not promote Mr. Pinto to First
Lieutenant. Accordingly, we affirm the trial court’s grant
of the government’s partial motion to dismiss for lack of
subject matter jurisdiction.
B
Mr. Pinto also appeals the trial court’s decision on two
procedural issues that he claims entitle him to his
requested relief. First, Mr. Pinto argues that he was
automatically promoted to First Lieutenant because the
Army did not provide a recommendation of non-promotion
before his eligibility date, and this justifies awarding him
back pay and a retroactive promotion. Second, Mr. Pinto
argues that the Army erred in involuntarily separating
him under AR 600–8–24 ¶ 5–11, which justifies reinstating
him.
1
Under
10 U.S.C. § 624(a)(2), officers are promoted to
First Lieutenant “in accordance with regulations
prescribed by the Secretary concerned.” AR 600–8–29
governs the promotion of officers in the Army. Promotion
eligibility to First Lieutenant is based in part on the
officer’s eligibility date, which occurs after approximately
eighteen months of active-duty service as a Second
Lieutenant. AR 600–8–29 ¶ 3–1.a.(1). Commanders in the
grade of Lieutenant Colonel or above “are authorized to
promote officers to the grade[] of [First Lieutenant].”
Id. at
¶¶ 1–7, 1–16.b.(1).
Although promotion from Second Lieutenant to First
Lieutenant is fairly routine, it is not automatic. The
regulations set forth specific procedures both for the
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PINTO v. US 7
promotion of officers from Second Lieutenant to First
Lieutenant and for failure to be selected for promotion. The
regulations state that “[Second Lieutenants] found not
qualified for promotion by the promotion approval
authority . . . will be retained for six months,” and “[Second
Lieutenants] who have not been promoted at the end of the
six month retention period will be processed for separation
under the provisions of AR 600–8–24, paragraph 4–2a(2).”
AR 600–8–29 at ¶¶ 1–13.b.(1) and (3). The promotion
approval authority may waive these requirements and
“direct immediate processing for separation under the
provisions of AR 600–8–24” if it “determines that the
officer’s retention is inconsistent with good order and
discipline.”
Id. at ¶ 1–13.b.(1). Decisions not to promote
officers to First Lieutenant are communicated using DA
Form 78 and should be provided by the officer’s eligibility
date.
Id. at ¶ 3–5.b.
Mr. Pinto argues that the removal of the flag from his
record resulted in him being automatically promoted to
First Lieutenant and that, in the alternative, he was
automatically promoted to First Lieutenant because the
promotion review authority did not present him with DA
Form 78 before his eligibility date. Appellant’s Br. at 15.
We agree with the trial court that the promotion from
Second Lieutenant to First Lieutenant is not automatic. As
the trial court explained, “[i]f the promotion to First
Lieutenant is automatic, it would be nonsensical for the
regulations to grant senior officers the authority to approve
or deny such a promotion.” D.A. 7. Furthermore, the trial
court correctly found that removing the flag from Mr.
Pinto’s record merely made him eligible for a promotion,
because there is no statutory or regulatory authority that
automatically grants a promotion once a flag is removed.
See AR 600–8–2 ¶ 3–1.d. We also agree with the trial court
that giving Mr. Pinto his DA Form 78 after his eligibility
date did not automatically promote him to First Lieutenant
once that date had passed. Although Mr. Pinto is correct
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8 PINTO v. US
that the AR 600–8–29 ¶ 3–5.b. requires giving an officer
DA Form 78 by the officer’s promotion eligibility date,
neither this paragraph nor any other allows for automatic
promotion if the deadline is missed. Mr. Pinto has not cited
to any authority that allows for automatic promotions in
the face of a missed statutory or regulatory deadline. As
the trial court explained, this delay “was harmless and
does not result in an automatic promotion.” D.A. 8. Thus,
Mr. Pinto is not entitled to an automatic promotion to First
Lieutenant or any of the relief related to promotion to First
Lieutenant, including back pay. We affirm the trial court’s
determination that the Board did not procedurally err in
failing to promote Mr. Pinto to First Lieutenant.
2
After Mr. Pinto was denied a promotion to First
Lieutenant a second time, he was separated in accordance
with AR 600–8–24 ¶ 5–11. Paragraph 5–11.a. states that
“[a]n [active duty list] officer not recommended for
promotion to the grade of [First Lieutenant] will be
separated not later than 90 calendar days after the
Promotion Review Authority approves the
nonrecommendation for promotion.” AR 600–8–24 ¶ 5–11.
Mr. Pinto argues that the Army erred by separating
him under ¶ 5–11 because according to the language of AR
600–8–29 ¶ 1–13.b.(3), he should have been processed for
separation under AR 600–8–24 ¶ 4–2.a.(2). Appellant’s Br.
at 15. Paragraph 4–2.a.(2) is directed to officer elimination
(rather than separation) for “[f]ailure to keep pace or to
progress with contemporaries, as demonstrated by a low
record of efficiency when compared with other officers of
the same grade and competitive category.” AR 600–8–24
¶ 4–2.a.(2). Mr. Pinto next argues that his separation
would violate AR 600–8–24 ¶ 4–4.b., which states that “no
officer will be considered for elimination for the reasons
stated in paragraph 4–2 because of conduct that has been
the subject of administrative elimination proceedings that
Case: 22-2093 Document: 37 Page: 9 Filed: 02/21/2023
PINTO v. US 9
resulted in final determination that the officer should be
retained in the Service.” Mr. Pinto argues that the Board
of Inquiry’s conclusion that he should be retained in the
Army constitutes an “administrative elimination
proceeding” as specified in ¶ 4–4.b. Thus, according to Mr.
Pinto, the Army violated AR 600–8–29 ¶ 1.13.b.(3), AR
600–8–24 ¶ 4–2.a.(2), and AR 600–8–24 ¶ 4–4.b. by
separating him due, in part, to the alleged misconduct.
Mr. Pinto is correct that, ordinarily, non-promotion
under AR 600–8–29 ¶ 1.13.b.(3) would trigger the
elimination processes detailed in AR 600–8–24 ¶ 4–2.a.(2)
and AR 600–8–24 ¶ 4–4.b. However, in Mr. Pinto’s case,
the Army properly waived the requirements of AR
600–8–29 ¶ 1.13.b. and exercised its discretion to “direct
immediate processing for separation under the provisions
of AR 600–8–24.” As discussed above, this waiver is
appropriate if the promotion review authority “determines
that the officer’s retention is inconsistent with good order
and discipline,” and this is exactly what happened to Mr.
Pinto. AR 600–8–29 ¶ 1–13.b.(1); D.A. 42. Major General
Smith reviewed Mr. Pinto’s second DA Form 78 and the
supporting documents and determined that Mr. Pinto’s
“further service is not in the best interests of good order
and discipline in this command.” D.A. 42. Because the
Army properly exercised its discretion to waive the
requirements of AR 600–8–29 ¶ 1.13.b., it was not required
to follow the elimination procedures in AR 600–8–24
¶ 4–2.a.(2) and AR 600–8–24 ¶ 4–4.b. Instead, the Army
was well within its discretion to separate Mr. Pinto under
any provision of AR 600–8–24, including AR 600–8–24
¶ 5–11. Separation under AR 600–8–24 ¶ 5–11 was
appropriate because this provision is specifically directed
to the separation of officers for failure to be promoted to
First Lieutenant. Therefore, we agree with the trial court
that the Army did not procedurally err in separating Mr.
Pinto under AR 600–8–24 ¶ 5–11 instead of AR 600–8–24
¶ 4–2.a.(2). Accordingly, we affirm the trial court’s
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10 PINTO v. US
decisions to grant the government’s motion for judgment
on the administrative record and deny Mr. Pinto’s motion
for judgment on the administrative record.
IV
Because the trial court did not err in granting the
government’s partial motion to dismiss and motion for
judgment on the administrative record or in denying Mr.
Pinto’s motion for judgment on the administrative record,
we affirm.
AFFIRMED
COSTS
No costs.
