United States Court of Appeals for the Federal Circuit
06-5030, -5036
DANNY T. BARNES,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP, of Washington, DC,
argued for plaintiff-cross appellant. With him on the brief was Matthew S. Freedus.
Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellant. 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 Captain Thomas B. Merritt, Jr., General Litigation Division, Office of the Judge
Advocate General, United States Department of the Navy, of Washington, DC. Of
counsel was Lt. Cdr. Thomas F. Leary.
Appealed from: United States Court of Federal Claims
Senior Judge James F. Merow
United States Court of Appeals for the Federal Circuit
06-5030, -5036
DANNY T. BARNES,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
DECIDED: January 4, 2007
__________________________
Before MICHEL, Chief Judge, LINN and PROST, Circuit Judges.
MICHEL, Chief Judge.
This case concerns a Navy officer who was involuntarily discharged following his
second non-selection for promotion, in accordance with
10 U.S.C. § 632(a). The
government appeals from a final judgment of the United States Court of Federal Claims,
reinstating Danny T. Barnes as a lieutenant, with back pay. The trial court ruled on the
administrative record that there was an unlawful delay in his promotion while certain
misconduct was further evaluated by high Navy officials. Barnes v. United States,
No. 99-883 C (Fed. Cl. Oct. 7, 2005). Barnes cross-appeals, seeking reversal of Dysart
v. United States,
369 F.3d 1303 (Fed. Cir. 2004), which precluded him from being
promoted to lieutenant commander by operation of law, the relief he initially sought
below. We reject the cross-appeal, but conclude that the court erred in finding the first
non-selection invalid where, we hold, the Navy adhered to the relevant statutory and
regulatory procedures in delaying his promotion and later removing his name from the
promotion list. We therefore reverse.
I. BACKGROUND
The underlying facts are well-summarized by the two thorough opinions below
and will not be set forth in similar detail here. See Barnes v. United States, 66 Fed Cl.
497, 497-98 (Fed. Cl. 2005) ("Barnes II"); Barnes v. United States, 57 Fed. Cl. 204, 208
(Fed. Cl. 2003) ("Barnes I"). Briefly, Barnes enlisted in the Navy on June 20, 1983. He
rose through the ranks and was promoted to lieutenant on June 1, 1992. Barnes was
selected by a board for promotion to lieutenant commander in the competitive category
of special duty officer (cryptology) on April 30, 1997. His nomination was confirmed by
the Senate on November 8, 1997.1 See 143 Cong. Rec. S12214 (daily ed. Nov. 8,
1997) (confirming those nominations received by the Senate and appearing at 143
Cong. Rec. S11390 (daily ed. Oct. 29, 1997)). His promotion never became effective,
however, because he was later disciplined for attempting to arrange off-duty liaisons
with five enlisted women, two of whom were his subordinates.
Following Barnes' non-judicial punishment proceedings concerning that
misconduct, a formal objection to his promotion was lodged by a lieutenant commander
in the Performance Division of the Navy on February 19, 1998. Barnes subsequently
1
In fact, Barnes received pay at the higher rank for one year starting on
April 1, 1998, his projected promotion date, but was later asked to pay back the
difference of approximately $2,500.
06-5030, -5036 2
received notice that his promotion was delayed "until all related administrative or
disciplinary action is completed." Although that notice letter was dated March 17, 1998,
Barnes was aboard the USS John S. McCain in the Persian Gulf at the time; thus, he
did not receive it until April 21, 1998, when he returned to his base at Misawa, Japan.2
He responded promptly on April 25, 1998, enclosing four character references. On
May 1, 1998, Barnes' commanding officer in Japan supported his promotion to
lieutenant commander, but recommended that his promotion be delayed such that he
would be the last in his year group to be promoted.
Meanwhile, on March 19, 1998, Barnes was directed to show cause why he
should be allowed to remain in the Navy, on the basis of the same misconduct. On
May 26, 1998, a Board of Inquiry ("BOI") was appointed. On May 27, 1998, the BOI
unanimously found that Barnes had engaged in conduct unbecoming an officer, failed to
demonstrate acceptable qualities of leadership, and failed to conform to prescribed
standards of military deportment; nonetheless, by a vote of 2 to 1, it recommended
retaining him in the Navy.
Ratification and extension of the initial delay in Barnes' promotion to lieutenant
commander was requested by the Bureau of Naval Personnel on August 14, 1998 and
approved by the Assistant Secretary of the Navy on August 24, 1998. On September 8,
1998, Barnes was notified that the Secretary of the Navy was considering the removal
of his name from the promotion list. He responded by letters dated September 24, 1998
and November 3, 1998. In addition, his commanding officer wrote two letters of
endorsement, dated October 2, 1998 and November 18, 1998. A memorandum
2
Barnes, however, acknowledges receiving email notification of his
promotion delay on April 15, 1998.
06-5030, -5036 3
addressed to the Special Assistant Congressional Liaison Office, dated December 14,
1998, indicated that Barnes' suitability for promotion was still being reviewed by the
chain of command. On March 22, 1999, the Chief of Naval Personnel determined that
Barnes was not qualified for promotion to lieutenant commander and requested removal
of his name from the promotion list; the Secretary of the Navy approved on April 26,
1999, and Barnes was notified on May 7, 1999. The removal of his name was deemed
a non-selection for promotion pursuant to 10 U.S.C. § 629(c)(2). Subsequently, he was
again considered for promotion by the next selection board. Following Barnes' second
non-selection for promotion, he was involuntarily discharged, pursuant to
10 U.S.C.
§ 632(a), on March 1, 2001.
Barnes subsequently accepted a reserve commission as a lieutenant in the
Independent Ready Reserves and received $72,107.28 in separation pay. On July 15,
2003, he tendered his resignation to the Naval Reserve Personnel Center, which ended
his obligation to the United States Navy. The Navy accepted his resignation by letter
dated July 29, 2003, and Barnes was honorably discharged from the United States
Naval Reserve, effective July 17, 2003.
* * *
On October 21, 1999, Barnes filed suit in the Court of Federal Claims. He
alleged that the delay in his promotion and the ultimate removal of his name from the
promotion list were not in accordance with statutory and regulatory procedures. Barnes
I, 57 Fed. Cl. at 205. He further contended that the failure of the Navy Board for
Correction of Military Records ("BCNR") to grant him relief was contrary to law or
06-5030, -5036 4
arbitrary and capricious.3 Id. In ruling on cross-motions for judgment on the
administrative record, the court agreed with Barnes that there had been various
procedural violations such that the delay was improper and had no effect on his
promotion; in other words, the court below ruled that Barnes had been promoted by
operation of law under 10 U.S.C. § 624(a)(2).
Id. at 218-19. Having ruled that the
BCNR's denial of relief was thus contrary to law, the court declined to reach the issue of
whether its reliance on the unclean hands doctrine was arbitrary and capricious.
Id. at
221.
This decision was revisited in the wake of Dysart, which held that
10 U.S.C.
§ 624 "does not provide for automatic appointment without action by the President."
369 F.3d at 1313. Barnes conceded that his first three causes of action, seeking
promotion to lieutenant commander by operation of law,4 had to be dismissed in light of
Dysart. Barnes II, 66 Fed. Cl. at 499. His alternative argument—that he was unlawfully
dismissed because his deemed non-selection was based on an improper removal of his
name from the promotion list—remained to be considered. Id. at 499, 503. The court
again agreed with Barnes that the Navy failed to follow its regulations in removing his
name from the promotion list, rendering the first non-selection invalid. Id. at 503-05.
3
Barnes filed his Application for Correction of Naval Records on May 16,
2000. At his request, the Court of Federal Claims stayed this litigation pending the
BCNR's decision. It denied relief on January 11, 2001 and denied reconsideration on
December 19, 2001. See Barnes II, 66 Fed. Cl. at 498.
4
Barnes' first cause of action alleged procedural error when he was not
notified of his promotion delay until after its effective date, in violation of
10 U.S.C.
§ 624(d)(3) and SECNAVINST 1420.1A ¶ 23c. His second cause of action alleged that
the delay in his promotion expired on May 27, 1998. His third cause of action alleged
that he was not provided notice, as required by § 624(d)(3), of new grounds for delay in
August 1998. See Barnes II, 66 Fed. Cl. at 499 n.2.
06-5030, -5036 5
The court incorporated by reference its analysis from the earlier decision and reasoned
that, "[a]bsent a valid 'first' deemed non-selection, there was no 'second' failure of
selection" to justify his involuntary discharge, as required under
10 U.S.C. § 632(a).
Id.
at 505.
Applying the constructive service doctrine, the trial court concluded that Barnes
was entitled to back pay and benefits retroactive to when he was improperly separated
in 2001.
Id. at 505-06. In addition, with constructive credit, Barnes reached twenty
years of active service and became eligible to retire in February 2006. The court
expressly rejected the government's argument that Barnes had waived his right to
reinstatement when he resigned from the Naval Reserves.
Id. at 506-07. The Navy
was ordered to reinstate Barnes with back pay.
Id. at 508. Judgment was entered
accordingly. No actions were taken by the Navy during the pendency of this appeal.
Timely notices of appeal and cross-appeal followed on December 2, 2005 and
December 15, 2005, respectively. We have jurisdiction pursuant to
28 U.S.C.
§ 1295(a)(3).
II. DISCUSSION
A
A decision granting or denying a motion for judgment upon the administrative
record is reviewed without deference. We apply the same standard of review as the
United States Court of Federal Claims, which means "we will not disturb the decision of
the corrections board unless it is arbitrary, capricious, contrary to law, or unsupported
by substantial evidence." Chambers v. United States,
417 F.3d 1218, 1227 (Fed. Cir.
2005). The trial court's legal conclusions will not be reversed unless incorrect as a
06-5030, -5036 6
matter of law, and its factual findings will not be disturbed unless clearly erroneous.
Heisig v. United States,
719 F.2d 1153, 1158 (Fed. Cir. 1983). Statutory or regulatory
interpretation, however, is reviewed without deference. Strickland v. United States,
423
F.3d 1335, 1337 (Fed. Cir. 2005).
B
As a threshold matter, the government asserts that alleged procedural defects
concerning the Navy's decision to remove Barnes' name from the promotion list are not
subject to judicial review. This argument was specifically rejected below. Barnes II, 66
Fed. Cl. at 499-503. We agree with the trial court.
It is well-established that although the merits of military promotion decisions are
nonjusticiable, "a challenge to the particular procedure followed in rendering a military
decision may present a justiciable controversy." Adkins v. United States,
68 F.3d 1317,
1323 (Fed. Cir. 1995). Indeed, Dysart itself recognized that courts can evaluate
whether the military follows the procedures mandated by statute or by its own
regulations when making promotion decisions. See
369 F.3d at 1315; see also Lewis v.
United States,
458 F.3d 1372, 1377 (Fed. Cir. 2006) (observing that courts can review
promotion decisions for violations of the Constitution, statutes, or regulations). As this is
the precise nature of Barnes' challenge, it is properly before us.
C
On the merits, the government argues that the Navy complied with all relevant
statutory and regulatory procedures. We agree that the court erred in finding otherwise.
Under the relevant statute and the accompanying Navy regulation, a promotion
may be delayed if (A) sworn court-martial charges have been received and such
06-5030, -5036 7
charges have not been disposed of; (B) an investigation is being conducted to
determine whether disciplinary action of any kind should be brought against the officer;
(C) a board of officers has been convened to review the record of the officer; or (D) a
criminal proceeding in a federal or state court is pending against the officer.
10 U.S.C.
§ 624(d)(1);5 SECNAVINST 1420.1A ¶ 23a. A promotion may also be delayed 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."
10 U.S.C. § 624(d)(2); see also SECNAVINST 1420.1A ¶ 23a. In any event, notice of
the grounds for the delay must be given, "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," so the officer will have an opportunity to submit a
written statement in response to the Secretary of the Navy.
10 U.S.C. § 624(d)(3); see
also SECNAVINST 1420.1A ¶ 23c. Moreover, the delay may not last "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," and even then, no more
than 18 months after the officer would otherwise have been appointed.
10 U.S.C.
§ 624(d)(4); see also SECNAVINST 1420.1A ¶ 23d.
Here, the court agreed with Barnes that the delay in his promotion was not
supported by any of the grounds listed in § 624(d) and ¶ 23a. Yet, the March 17, 1998
notice stated that the reason for the delay in Barnes' promotion was his conduct
unbecoming an officer, for which he had received non-judicial punishment in a
5
This statutory provision was later amended on October 17, 2006, see P.L.
109-364,
120 Stat. 2181, 2183, to include another subparagraph: "(E) substantiated
adverse information about the officer that is material to the decision to appoint the
officer is under review by the Secretary of Defense or the Secretary concerned."
06-5030, -5036 8
proceeding that was completed on November 24, 1997. It expressly referenced
SECNAVINST 1420.1A and observed "you may not be qualified for permanent
promotion." In other words, the proffered reason for the delay was the catch-all
provision of § 624(d)(2). The memorandum clearly implies that Barnes' attempted
fraternization with female subordinates was cause to believe he was not qualified to be
promoted. The court therefore erred by interpreting this statement as merely "posing a
question" and "not a finding of cause to believe Barnes was not mentally, physically,
morally, or professionally qualified to perform the duties of the higher rank." Barnes I,
57 Fed. Cl. at 211. Further, the court improperly concluded that a separate order to
show cause on fitness for promotion was required. The statute merely contemplates
giving notice to the officer of the grounds for the delay; it does not suggest any
requirement to provide an even earlier notice that one of the statutory grounds for delay
may exist. Moreover, contrary to the ruling of the trial court, there is no requirement in
the statute or the accompanying regulation for a formal "finding" on fitness before a
promotion may be delayed.
The court further found that, even if the delay had been supported by one of the
enumerated statutory reasons, it ended by its own terms when "all related administrative
or disciplinary action [wa]s completed," which the trial court found was on May 27, 1998.
Id. at 213. This was also erroneous. While it is true that Barnes' separation
proceedings before the BOI ended on May 27, 1998, the record clearly demonstrates
that whether he was suitable for promotion to lieutenant commander was still pending
review by his chain of command. Indeed, Barnes himself recognized this to be the case
in his letter dated April 1, 1999, wherein he "respectfully request[s] that the Navy drops
06-5030, -5036 9
the effort to remove [him] from the promotion list, and restore his promotion effective 01
April 1998."
In the alternative, Barnes argues that the Navy failed to comply with the notice
requirement by not notifying him of the March 17, 1998 letter before the effective date of
his promotion, i.e., April 1, 1998. We disagree. The statute and accompanying
regulation expressly provide an exception where notice is "impracticable"; here, Barnes
was at sea. Moreover, Barnes did not suffer any prejudice, as he promptly submitted
his written response as soon as he returned to Japan. Meanwhile, the Navy neither
took action against him nor made any decision to do so. Thus, even if the court had
correctly concluded that there was a procedural defect, we hold it was harmless.
With respect to the extension of the delay period beyond six months, we agree
with the court that ratification was sought before six months had expired and the total
period of delay before Barnes' name was removed was less than eighteen months, in
compliance with statutory and regulatory requirements. The trial court, however, found
that the failure to notify Barnes that the delay had been extended in August 1998 was a
procedural defect, emphasizing that "the officer must know about the delay in order for
the officer to respond." Barnes I, 57 Fed. Cl. at 217. Yet, neither § 624(d)(4) nor
SECNAVINST 1420.1A ¶ 23d requires a separate notice to be provided if a delay in
promotion is extended beyond six months. We are not persuaded by the argument that
the notice requirement of § 624(d)(3) and ¶ 23c applies. The government correctly
argues that an officer must be notified of the grounds for a delay, not its duration.6
Here, the underlying reason for delay did not change. Barnes already knew that his
6
As such, we reject Barnes' argument that the August 1998 extension of
the delay was procedurally defective for failing to specify the further period of delay.
06-5030, -5036 10
promotion was being delayed due to his misconduct. He not only had the opportunity to
respond but had actually submitted multiple written responses, dated April 25, 1998,
September 24, 1998, and November 3, 1998, respectively.
We therefore conclude that there was no procedural error in the delay of Barnes'
promotion. As such, we necessarily find that the later removal of his name from the
promotion list occurred during a lawful delay period. Thus, the first non-selection was
valid, and Barnes was properly discharged following his second non-selection.
In light of this holding, we need not reach the government's alternative argument
that Barnes is precluded from seeking reinstatement after Dysart because allowing such
a remedy for the alleged procedural errors would encroach upon the President's
appointment authority. Nor do we need to decide whether Barnes waived his right to
reinstatement when he voluntarily resigned from the Naval Reserves. We further
decline to resolve whether the BCNR's denial of relief was otherwise improper, an issue
that the trial court never decided in the first instance.
D
Although he argues that it was wrongly decided, Barnes himself recognizes that
this panel is bound to follow Dysart unless and until it is overturned by the court sitting
en banc. We therefore do so and reject the cross-appeal. Nor are we persuaded, as
requested, to propose en banc review ourselves.
III. CONCLUSION
For these reasons, the judgment of the Court of Federal Claims is
REVERSED.
06-5030, -5036 11
