Antonellis v. United States , 723 F.3d 1328 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
JAMES ANTONELLIS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-5140
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-666, Judge Edward J. Damich.
______________________
Decided: July 18, 2013
______________________
JEFFREY A. VOGELMAN, Thomas, Ballenger, Vogelman
& Turner, P.C., of Alexandria, Virginia, argued for plain-
tiff-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.
2 JAMES ANTONELLIS v. US
______________________
Before DYK, BRYSON, and REYNA, Circuit Judges.
DYK, Circuit Judge.
James Antonellis, an officer in the United States Na-
vy 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 enti-
tled 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 re-
spectable and upstanding career with the Navy.” Antonel-
lis, 106 Fed. Cl. at 113. Antonellis is a member of the
Ready Reserves, which includes the Selected Reserve and
the Individual Ready 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.”).
JAMES ANTONELLIS v. US 3
The National Command and Senior Officer Non-
Command 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 as-
signment.” 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 com-
mand 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 Individ-
ual 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 profes-
sional military education.” J.A. 33. The letter does not
4 JAMES ANTONELLIS v. US
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 bil-
let that the majority of the Board members con-
sider 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 Volun-
teer 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 assert-
ed 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 substan-
tial evidence.” Id. He sought over $64,700 in back pay.
Antonellis, 106 Fed. Cl. at 114. The Claims Court found
JAMES ANTONELLIS v. US 5
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 grant-
ed. Id. at 116.
Antonellis timely appealed. We have jurisdiction un-
der 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’ sover-
eign 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 gov-
ernment 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 viola-
tion of the Constitution, a statute, or a regulation, has
6 JAMES ANTONELLIS v. US
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 de-
scription of prior authority is useful.
Unfortunately, our decisions and those of our prede-
cessor 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 de-
cisions of the military authorities as to promotion, separa-
tion, or reassignment. We have emphasized that “the
military is entitled to substantial deference in the govern-
ance 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 (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 nonjustici-
able 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
JAMES ANTONELLIS v. US 7
relative merit.” Sargisson v. United States, 913 F.2d 918,
922 (Fed. Cir. 1990).
Second, if a statute, regulation, or instruction speci-
fies the particular procedure to be followed in personnel
actions, and the plaintiff alleges that the required proce-
dure was not followed, a judicial remedy may be available.
When the military promulgates procedural regulations
and instructions and makes them the basis for a person-
nel action, that action is “subject to judicial review for
compliance with those regulations and instructions.”
Sargisson, 913 F.2d at 921. When a party asserts that
the military violated a specific procedure mandated by
statute or regulation, “the test[s] or standards against
which this court measures the military’s conduct are
inherent: they are the applicable statutes and regula-
tions.” Adkins v. United States, 68 F.3d 1317, 1323 (Fed.
Cir. 1995) (citing Murphy v. United States, 993 F.2d 871,
873 (Fed. Cir. 1993)). For example, in Adkins, we recog-
nized that “although 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 decision may present a
justiciable controversy.” Id. at 1323. There, the plaintiff
asserted that the Secretary of the Army had, inter alia,
improperly considered evidence outside the administra-
tive record in rejecting the Army Board for Correction of
Military Records’ recommendation to remove certain
negative information (which had allegedly led to Adkins’
involuntary retirement) from Adkins’ personnel file. Id.
at 1319–20, 1324. We held that this allegation was justi-
ciable because it involved a procedural requirement that
the Secretary “‘base his decision on the record as the
board presents it to him.’” Id. at 1325–26 (quoting Sel-
man v. United States, 723 F.2d 877, 880 (Fed. Cir. 1983)).
Some cases have given a broad scope to judicial re-
view of such procedural matters. In Sanders, the Court of
Claims, sitting en banc, reversed a non-promotion deci-
8 JAMES ANTONELLIS v. US
sion of the Air Force because the Air Force did not comply
with a statutory requirement “to consider him on the
basis of a record which portrayed his service career on ‘a
fair and equitable basis.’” See 594 F.2d at 806–08, 814
(quoting 10 U.S.C. §§ 3442(c), 8442(c) (1976) (repealed
1980)). Similarly, in Skinner v. United States, the court
considered a claim that that the plaintiff’s non-selection
for a promotion had been based on ratings which had been
directed by superior officers and were therefore tainted by
“improper command influence.” 594 F.2d 824, 828 (Ct. Cl.
1979).
Third, contrary to the government’s argument, a back
pay remedy under the Military Pay Act is available under
some circumstances, based on a finding of procedural
violations.
To be sure, back pay is not always available. For ex-
ample, in the promotions context we have noted that “the
Military Pay Act ordinarily does not give rise to a right to
the pay of the higher rank for which the plaintiff was not
selected.” Smith v. Sec’y of the Army, 384 F.3d 1288, 1294
(Fed. Cir. 2004). This is so because, generally, “a service
member is entitled only to the salary of the rank to which
he is appointed and in which he serve[d].” Id. However,
we have also recognized circumstances in which back pay
is available. One such exception arises when the plaintiff
“has satisfied all the legal requirements for promotion,
but the military has refused to recognize his status.” Id.(citing Skinner, 594 F.2d at 830). Another exception
arises when a decision not to select a plaintiff for promo-
tion leads to his compulsory discharge. See id. at 1295.
In such circumstances, a successful plaintiff may recover
back pay because the Military Pay Act “‘confers on an
officer the right to pay of the rank he was appointed to up
until he is properly separated from the service.’” Id.
(quoting Sanders, 594 F.2d at 810); see also Adkins, 68
F.3d at 1327. As discussed below, still another exception
exists where the back pay claim is based on action by a
JAMES ANTONELLIS v. US 9
Board for the Correction of Military Records, see 10 U.S.C.
§ 1552, at least where a special selection board has been
convened pursuant to 10 U.S.C. § 628. See generally
Porter v. United States, 163 F.3d 1304 (Fed. Cir. 1998).
While we need not articulate precisely when back pay is
or is not available here, our cases make clear that a
personnel decision based on procedural error can lead to
an award of back pay in some instances.
The government attempts to derive a contrary rule
from Palmer v. United States, 168 F.3d 1310 (Fed. Cir.
1999) and our unpublished disposition in King v. United
States, 53 F. App’x 930 (Fed. Cir. 2002) (nonprecedential).
According to the government, in both Palmer and King we
held that back pay is not an available remedy.
We find no such rule in those cases. Palmer simply
held that a service member could not recover back pay for
duties not performed, 168 F.3d at 1312–14, while in King,
the Claims Court decision (affirmed by this court) held
that the governing policy handbook was merely “aspira-
tional” and did not carry the force of law, and that Air
Force Regulation 36-20 “furnishes no judicially enforcea-
ble standards.” King v. United States, 50 Fed. Cl. 701,
710 (2001).
Fourth, a complaint concerning procedural violations
must typically be brought first before a Board for the
Correction of Military Records. See 10 U.S.C. § 1552.
Although there is generally no requirement that a plain-
tiff exhaust remedies with the applicable Corrections
Board before filing suit in the Claims Court, Heisig v.
United States, 719 F.2d 1153, 1155 (Fed. Cir. 1983), these
cases normally still proceed through the Corrections
Boards because “[t]ypically, if suit is filed just in the
[Claims Court], that court will require resort to a Correc-
tions Board while the matter remains pending in that
court.” Richey v. United States, 322 F.3d 1317, 1323 (Fed.
Cir. 2003). In such cases, if the Corrections Board refuses
10 JAMES ANTONELLIS v. US
relief, the service member can seek review in Claims
Court pursuant to the Military Pay Act, which is the
money-mandating statute that provides the Claims Court
with Tucker Act jurisdiction. See, e.g., Adkins, 68 F.3d at
1318, 1321. With respect to promotions disputes, Con-
gress in 1980 enacted the Defense Officer Personnel
Management Act (“DOPMA”), see Pub. L. No. 96-513, 94
Stat. 2835 (1980). 1 DOPMA provides that the Corrections
Boards shall create “special selection boards” to reconsid-
er individuals for a promotion in such cases, see 10 U.S.C.
§ 628; see also Richey, 322 F.3d at 1323–25; Porter, 163
F.3d at 1312–15. The special selection board considers
the officer’s record (with any necessary corrections) to-
gether with “a sampling of the records of those officers of
the same competitive category” and makes a determina-
tion of whether the officer should be recommended for a
promotion. 10 U.S.C. § 628(a), (b). The special selection
board then submits a report to the Secretary of the perti-
nent military department detailing its recommendation.
10 U.S.C. § 628(c)(1). If the report recommends the officer
for a promotion, and the report of the board is approved
by the President, then the officer is promoted and be-
comes entitled to the pay and allowances that he would
1 Prior to the enactment of DOPMA, if a service
member established a procedural defect in the promotions
process, his right to recover could be defeated if the gov-
ernment established harmless error. See Sanders, 594
F.2d at 814–18; Hary v. United States, 618 F.2d 704, 709–
10 (Ct. Cl. 1980). In Porter, we held that, where applica-
ble, the procedures provided by § 628 superseded that
harmless error approach. 163 F.3d at 1321–24. However,
we were also careful to emphasize that we did not over-
rule Sanders in its entirety, see id. at 1323, and our
subsequent cases suggest that harmless error remains an
appropriate inquiry in other contexts. See Christian v.
United States, 337 F.3d 1338, 1347–48 (Fed. Cir. 2003).
JAMES ANTONELLIS v. US 11
have received but for the original, defective promotion
board decision. 10 U.S.C. § 628(d); Richey, 322 F.3d at
1328. When the officer is promoted, he becomes entitled
to a back pay remedy. See Porter, 163 F.3d at 1315.
Finally, a remedy is available only if the statute, regu-
lation, or instruction provides justiciable standards. This
is because a controversy is justiciable only if there are
“tests or standards for the court to apply.” Voge, 844 F.2d
at 780; see also Baker v. Carr, 369 U.S. 186, 217 (1962)
(noting that an issue is nonjusticiable if there is “a lack of
judicially discoverable and manageable standards for
resolving it”); Coleman v. Miller, 307 U.S. 433, 452–53
(1939) (finding no “criteria for . . . a judicial determina-
tion” of what constitutes a “reasonable time” in which to
ratify an amendment to the U.S. Constitution). Thus, in
Gilligan v. Morgan, the Supreme Court held nonjusticia-
ble a challenge to the “training, weaponry[,] and orders of
the Ohio National Guard” because of “a lack of judicially
discoverable and manageable standards.” 413 U.S. 1, 5–6,
8 (1973) (quotation marks omitted). The Court further
emphasized that “it is difficult to conceive of an area of
governmental activity in which the courts have less
competence” than “decisions as to the composition, train-
ing, equipping, and control of a military force.” Id. at 10.
Thus, even where a procedural violation is alleged,
the matter is nonjusticiable unless the pertinent regula-
tions or instructions provide sufficient “tests or stand-
ards” against which the court can measure the military’s
conduct. See Sargisson, 913 F.2d at 921–22; see also
King, 50 Fed. Cl. at 710 (finding the plaintiff’s reliance on
Air Force Regulation (“AFR”) 36-20 “unavailing” because
the regulation “furnishe[d] no judicially enforceable
standards”). For example, in Sargisson, an Air Force
reserve officer alleged that the Air Force improperly
released him from active duty pursuant to AFR 36-12 ¶ 71
and an implementing Letter of Instructions issued by the
Secretary of the Air Force. 913 F.2d at 920–21. However,
12 JAMES ANTONELLIS v. US
we found that “the Secretary’s compliance with AFR 36-12
¶ 71 and the Letter of Instructions [wa]s . . . nonjusticia-
ble,” reasoning that “[n]either AFR 36-12 ¶ 71 nor the
Letter of Instructions gave any ‘tests or standards’ by
which the Claims Court could determine whether the
decision to release Sargisson from active duty was cor-
rect.” Id. at 921–22.
III
The government contends that, even if there were a
procedural defect in the Navy’s billet assignments, “[An-
tonellis] might be entitled to judicial review of whether
procedures were followed, but he still cannot receive . . .
money for a position [to which] he was not assigned.”
Oral Arg. at 18:13–18:41. As discussed above, based on
our past decisions and those of our predecessor court, we
cannot agree with the government that Antonellis’ claim
fails because monetary relief is categorically unavailable
to redress a procedural violation resulting in the failure to
assign him to a pay billet. At the same time, we agree
with the Claims Court that Antonellis failed to allege a
justiciable controversy as required by our authority.
Antonellis attempts to frame his claim as a challenge
to the APPLY Board’s compliance with required proce-
dures. Thus, he argues that the Commander’s guidance
letter includes “pages of supporting procedure” which
“specifically set forth the factors which are to be consid-
ered by [the APPLY Board,] . . . prohibit from discussion
or disclosure certain other factors[, and] . . . require the
Board members to assign applicants a numerical ranking
based on the assigned confidence factor derived from the
available enumerated criteria.” Appellant’s Br. 12–13. A
closer examination of Antonellis’ argument, however,
reveals that he is not in substance alleging a procedural
violation. In his complaint, Antonellis asserts, inter alia,
that the APPLY Board’s failure to assign him to a Select-
ed Reserve billet is “biased, unexplained,” Compl. ¶ 7,
JAMES ANTONELLIS v. US 13
“arbitrary, capricious, unsupported by substantial evi-
dence,” “a flagrant abuse of discretion, [and] in bad faith,”
id. ¶ 10. Antonellis argues in his brief that “it is reasona-
ble to infer that given [his] qualifications and exemplary
record, the that APPLY Board failed to follow the proce-
dures and criteria set forth in the [Commander’s guidance
letter].” Appellant’s Br. 13. Apart from this proposed
inference, however, Antonellis asserts no basis for con-
cluding that the Navy’s assignment process was proce-
durally defective. Indeed, at oral argument, counsel for
Antonellis conceded that he lacked an adequate basis to
even allege any specific procedural violation. Oral Arg. at
6:22–7:05. 2
Even if Antonellis’ complaint could be read as alleging
a procedural violation, as the Claims Court observed, the
Commander’s guidance letter “lists the factors the Board
should consider [in making billet assignments], but it
2 At oral argument, Antonellis’ counsel suggested
that the APPLY Board did not score and rank Antonellis
as required by the Commander’s guidance letter. Oral
Arg. at 6:02–6:16. However, he stated that he had not
included that allegation in Antonellis’ complaint because
he lacked a sufficient basis to make it:
Q: “Well where does it—I don’t see where paragraph
ten or any other thing you’ve called to our attention says
he wasn’t ranked or scored.”
A: “Because I can’t, until I can see what their evi-
dence—”
Q: “You don’t even allege it.”
A: “Well . . . perhaps I should have. It’s hard to do
that because you’re supposed to have a basis for making
an allegation.”
Id. at 6:30–6:53.
14 JAMES ANTONELLIS v. US
does not specify the weight to be given to each factor.”
Antonellis, 106 Fed. Cl. at 116. While the Commander’s
guidance letter specifies in considerable detail the proce-
dures to be followed, it ultimately directs Board members
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 require-
ments of the Supported command and billet.
J.A. 30. Courts are in no position to determine the “best
qualified Officer” or the “best match” for a particular
billet. See Sargisson, 913 F.2d at 922. We therefore
affirm the Claims Court’s dismissal of Antonellis’ com-
plaint.
AFFIRMED
COSTS
No costs.