 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
