  United States Court of Appeals
      for the Federal Circuit
                ______________________

 TERRYL J. SCHWALIER, Brig. Gen., USAF, Ret.,
              Plaintiff-Appellant,

                           v.

 CHARLES T. HAGEL, Secretary of Defense AND
DEBORAH LEE JAMES, Secretary of the Air Force,
             Defendant-Appellees.
           ______________________

                      2014-1113
                ______________________

    Appeal from the United States District Court for the
District of Columbia in No. 1:11-CV-00126, Judge Rose-
mary M. Collyer.
                 ______________________

               Decided: January 8, 2015
                ______________________

    EDWARD F. RODRIGUEZ, JR., Law Offices, of Fairfax,
Virginia, argued for plaintiff-appellant. With him on the
brief was DAVID P. SHELDON, Law Offices of David P.
Sheldon, of Washington, DC.

    DOUGLAS K. MICKLE, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendants-appellees. With him on the brief were STUART
F. DELERY, Assistant Attorney General, ROBERT E.
KIRSCHMAN, JR., Director, and STEVEN J. GILLINGHAM,
2                                    SCHWALIER   v. DEFENSE



Assistant Director. Of counsel on the brief was TODI S.
CARNES, Air Force Legal Services Agency, General Litiga-
tion Division, Military Personnel Law Branch, of Joint
Base Andrews, Maryland.
                 ______________________

    Before PROST, Chief Judge, REYNA and HUGHES, Circuit
                           Judges.
HUGHES, Circuit Judge.
    Following nomination by the President and confirma-
tion by the Senate, Brigadier General Terryl J. Schwalier
was scheduled to be appointed to major general in early
1997. Before that time, however, his appointment was
delayed and the President later chose not to appoint him.
Nonetheless, Mr. Schwalier argues that he was appointed
by operation of law after the delay of his appointment
expired and before the President’s decision. The ap-
pointment process for senior military officers does not
allow for automatic appointments, and a President’s
decision not to appoint an officer is unreviewable. Be-
cause the district court correctly held that the Air Force
and the Department of Defense did not act arbitrarily or
capriciously    by     not     retroactively    appointing
Mr. Schwalier, we affirm.
                             I
    In 1995, a Major General Promotion Selection Board
placed Mr. Schwalier on a list of candidates to be promot-
ed to major general. Promotion to major general consti-
tutes an appointment that must be made by the
President, by and with the advice and consent of the
Senate. See U.S. Const. art. II, § 2, cl. 2; 10 U.S.C.
§ 624(c). Pursuant to 10 U.S.C. § 624, President Clinton
received the list and nominated Mr. Schwalier for the
promotion. The Senate confirmed the nomination in
March 1996, and Mr. Schwalier’s projected effective date
of promotion was to be in January or February of 1997.
SCHWALIER   v. DEFENSE                                  3



     Before the effective date of his promotion,
Mr. Schwalier assumed command of the 4404th Wing
(Provisional) at the King Abdulaziz Airbase in Saudi
Arabia. Many of the Wing’s personnel lived in the Khobar
Towers, a nearby apartment complex. On June 25, 1996,
a terrorist group detonated a truck bomb at the Khobar
Towers, killing 19 airmen and injuring hundreds of oth-
ers.     In December 1996 and in January 1997,
Mr. Schwalier was told that his promotion would be
delayed. Meanwhile, Congress, the Department of De-
fense, and the Air Force commissioned investigations of
the attack. The Department of Defense’s investigation
was unfavorable to Mr. Schwalier, and the Secretary of
Defense recommended that President Clinton remove
Mr. Schwalier from the Selection Board’s list. On July 31,
1997, President Clinton removed Mr. Schwalier’s name
from the list.
     Mr. Schwalier retired in September 1997. In 2003, he
filed an application to correct his military records with
the Air Force Board for Correction of Military Records.
According to Mr. Schwalier, the permissible length of
promotion delay under 10 U.S.C. § 624(d)(4) ended before
the President removed Mr. Schwalier from the list. He
argued that he was therefore promoted by operation of
law when the delay ended.
    Initially, the Corrections Board agreed with
Mr. Schwalier. It recommended that the Secretary of the
Air Force “correct an error” under 10 U.S.C. § 1552(a)(1)
in Mr. Schwalier’s records to reflect that, among other
things, he was promoted to major general. The Depart-
ment of Defense, however, disagreed with the recommen-
dation. Its General Counsel determined that, according to
this court’s decision in Dysart v. United States, 369 F.3d
1303 (Fed. Cir. 2004), promoting Mr. Schwalier retroac-
tively would be without legal effect. Based on the deter-
minations of the General Counsel for the Department of
4                                      SCHWALIER   v. DEFENSE



Defense, the Corrections       Board    ultimately    denied
Mr. Schwalier’s application.
    In 2007, Mr. Schwalier requested that the Corrections
Board reconsider his application. The Corrections Board
found in favor of Mr. Schwalier. In November 2007, it
determined that the decision to remove Mr. Schwalier
from the list caused an “injustice” under 10 U.S.C.
§ 1552(a)(1), warranting the requested corrections. The
Air Force then issued a letter in December 2007, stating
that Mr. Schwalier was appointed to major general,
effective January 1, 1997. Shortly after, the General
Counsel for the Department of Defense again advised the
Secretary of the Air Force that the implementation of the
Corrections Board’s recommendations would be without
legal effect and that the Secretary of Defense agreed.
Accordingly, the Secretary of the Air Force rescinded all
corrections of Mr. Schwalier’s records on April 3, 2008.
     In 2011, Mr. Schwalier filed a complaint against the
Secretary of Defense and the Secretary of the Air Force
(collectively, the government) in the United States Dis-
trict Court for the District of Columbia. The complaint
sought back pay and other relief under the Administra-
tive Procedure Act (APA). The district court granted
summary judgment to the government, finding that it did
not act arbitrarily or capriciously by refusing to retroac-
tively promote Mr. Schwalier.
    Mr. Schwalier then appealed to the United States
Court of Appeals for the District of Columbia Circuit. The
D.C. Circuit determined that the district court had juris-
diction over Mr. Schwalier’s case because it was based in
part on the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and
in part on the APA. Given this holding, the D.C. Circuit
held that it lacked jurisdiction over Mr. Schwalier’s case.
Consequently, the D.C. Circuit transferred the appeal to
this court.
SCHWALIER   v. DEFENSE                                     5



                             II
    As an initial matter, the government argues that
Mr. Schwalier’s complaint should have been dismissed as
barred by the statute of limitations applicable to Little
Tucker Act claims, depriving the trial court of jurisdiction.
But Mr. Schwalier’s complaint is also based on the APA.
Actions for judicial review under the APA accrue at the
time of final agency action and are subject to the six-year
statute of limitations in 28 U.S.C. § 2401(a). See Premin-
ger v. Sec’y of Veterans Affairs, 517 F.3d 1299, 1307 (Fed.
Cir. 2008); Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C.
Cir. 2014). Mr. Schwalier filed his complaint in 2011,
requesting review under the APA of the government’s
final action in 2008. Accordingly, Mr. Schwalier filed his
complaint within the statute of limitations.
    Moreover, we are satisfied that we have jurisdiction
over Mr. Schwalier’s appeal, as it is based “in whole or in
part” on the Little Tucker Act. 28 U.S.C. § 1295(a)(2).
And even “when a mixed case is presented and the nontax
Little Tucker Act claim is dismissed, the other claims may
be reviewed provided the Little Tucker Act claim was
nonfrivolous.” Banks v. Garrett, 901 F.2d 1084, 1088
(Fed. Cir. 1990). As the D.C. Circuit held, Mr. Schwalier’s
request for back pay in his complaint is “unambiguously
monetary in nature” and based “in part” on the Little
Tucker Act. Schwalier v. Hagel, 734 F.3d 1218, 1222
(D.C. Cir. 2013).      Thus, we have jurisdiction over
Mr. Schwalier’s appeal. 1



    1   To the extent Appellees suggest we must retrans-
fer Mr. Schwalier’s appeal, doing so at this point would
create the “jurisdictional ping-pong” the Supreme Court
has cautioned against. Christianson v. Colt Indus. Oper-
ating Corp., 486 U.S. 800, 818 (1988). “Under law-of-the-
6                                      SCHWALIER   v. DEFENSE



                             III
     Applying D.C. Circuit law here, we review a grant of
summary judgment de novo. Epos Techs. Ltd. v. Pegasus
Techs. Ltd., 766 F.3d 1338, 1341 (Fed. Cir. 2014). Sum-
mary judgment is appropriate when there is “no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    The APA entitles “a person suffering legal wrong be-
cause of agency action, or adversely affected or aggrieved
by agency action . . . , to judicial review thereof.” 5 U.S.C.
§ 702. The reviewing court must set aside a final agency
action that is “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
                              A
    The Secretary of the Air Force may correct a military
record when it is “necessary to correct an error or remove
an injustice.” 10 U.S.C. § 1552(a)(1). The procedures for
such corrections are established by the Secretary of the
Air Force and must be approved by the Secretary of
Defense. 10 U.S.C. § 1552(a)(3). The regulations provide
that if a Corrections Board’s recommendation would affect
an appointment or promotion requiring confirmation by
the Senate, as is the case here, the recommendation must
be forwarded to the Secretary of the Air Force for final
decision. 32 C.F.R. § 865.4(l)(3). After a final decision
has been made, it is “final and conclusive on all officers of
the United States.” 10 U.S.C. § 1552(a)(4).




case principles, if the transferee court can find the trans-
fer decision plausible, its jurisdictional inquiry is at an
end.” Id. at 819.
SCHWALIER   v. DEFENSE                                       7



     Mr. Schwalier interprets 10 U.S.C. § 1552 as turning
the Air Force’s December 2007 retroactive appointment
letter into a final decision that is binding on all officers of
the United States, even though the President chose not to
appoint Mr. Schwalier in 1997. He argues that the under-
lying Corrections Board’s recommendation to retroactively
appoint him was proper, as he was promoted by operation
of law before the President acted to remove Mr. Schwalier
from the promotion list.
     Under the Constitution, three actions are ordinarily
required for a person to be appointed to a senior military
office: the President’s nomination; confirmation by the
Senate; and the President’s appointment. Dysart, 369
F.3d at 1311 (citing Marbury v. Madison, 5 U.S. 137, 155–
56 (1803)). For a promotion of a senior military officer to
be effective, including a promotion to major general, all
three acts must be completed. Id. at 1311–12. And 10
U.S.C. § 624, the statute under which Mr. Schwalier was
to be appointed in 1997, incorporates this constitutional
design. See 10 U.S.C. § 624(b)–(c); Dysart, 369 F.3d at
1313. Importantly, § 624 does not provide for an ap-
pointment by operation of law without a final act of
appointment by the President. Dysart, 369 F.3d at 1313.
Here, the President chose not to exercise his appointment
power by removing Mr. Schwalier’s name from the promo-
tion list in 1997. Accordingly, the third and final act
required for an appointment is missing altogether in this
case.
    According to Mr. Schwalier, the Air Force’s December
2007 retroactive appointment letter overrides the Presi-
dent’s decision in 1997 to remove Mr. Schwalier from the
promotion list because the letter issued pursuant to
§ 1552. It is true that § 1552 states that a record correc-
tion decision is “final and conclusive.” But in this case,
the President chose not to appoint Mr. Schwalier in
1997—long before any record correction decision arose—
and § 1552 does not apply here. In any event, interpret-
8                                     SCHWALIER   v. DEFENSE



ing § 1552 as allowing for the reversal of the President’s
decision to withhold Mr. Schwalier’s appointment cannot
be the correct interpretation of the statute. See Dysart,
369 F.3d at 1316–17. Indeed, accepting Mr. Schwalier’s
interpretation of § 1552 would effectively allow Congress
to compel the President to appoint senior officers of the
United States. “Congress does not have the authority to
require the President to exercise his appointment power;
such authority would be akin to an exercise by Congress
of the appointment power itself, which is prohibited.”
Dysart, 369 F.3d at 1317. Thus, we hold that § 1552 does
not allow for appointment by operation of law when the
President has chosen not to appoint a person to office.
                             B
    Mr. Schwalier also argues that the General Counsel
for the Department of Defense acted arbitrarily and
capriciously when it “coerced” the Secretary of the Air
Force into rescinding the corrections of his records.
Appellant’s Br. 18–19. But the Air Force is a subcompo-
nent of the Department of Defense. 10 U.S.C. § 111(a)(8).
It acts “subject to the authority, direction, and control of
the Secretary of Defense,” 10 U.S.C. § 8013, who has
prescribed that the General Counsel for the Department
of Defense will resolve legal disagreements within itself,
Department of Defense Directive 5145.01 §§ 3.01, 3.10
(May 2, 2001). Accordingly, the Secretary of Defense and
the General Counsel for the Department of Defense did
not violate the law when they stepped in to resolve the
issue of whether the Air Force legally could correct
Mr. Schwalier’s records.
    Additionally, the government’s decision to rescind the
corrections of Mr. Schwalier’s records itself was not
arbitrary or capricious. Mr. Schwalier was slated to be
promoted to major general under 10 U.S.C. § 624. The
recommendations to correct Mr. Schwalier’s records were
based on the theory that he was promoted by operation of
SCHWALIER   v. DEFENSE                                    9



law before the President removed him from the list. But
§ 624 does not allow for such “automatic” appointments,
and “Congress could not have permissibly altered the
appointment process . . . by providing for automatic
appointments.” Dysart, 369 F.3d at 1313–14. Moreover,
the President’s decision not to appoint Mr. Schwalier “is
simply unreviewable.” Id. at 1316. In sum, as the Gen-
eral Counsel for the Department of Defense correctly
determined, Dysart controls Mr. Schwalier’s case, and the
government did not act arbitrarily or capriciously by
following the General Counsel’s advice.
                            IV
    We have considered Mr. Schwalier’s remaining argu-
ments and find them unpersuasive. Because the govern-
ment did not act arbitrarily or capriciously by declining to
correct Mr. Schwalier’s records, the judgment of the
district court is affirmed.
                         AFFIRMED
   No costs.
